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Q X 

A'txT 

No. 41. 

IN SENATE, 

January 31, 1833, 


STATE OF NEW-YORK, ) 

In Senate, January 31, 1833. ) 

Resolved, That there be printed four times the usual number of 
copies of the Virginia and Kentucky Resolutions of 1798, Mr. Madi¬ 
son’s report on the Virginia Resolutions in 1799, and also Mr. Ma¬ 
dison’s Letter to the editor of the North American Review, in Au¬ 
gust, 1830. 

By order. 

JOHN F. BACON, Clerk, 


MESSAGE 

From Governor Jay, of the 12th January, 1799, ac¬ 
companying Resolutions from Virginia and Ken¬ 
tucky. 

Gentlemen, 

Certain Resolutions of the Legislatures of Virginia and Ken¬ 
tucky having been officially transmitted to me for the purpose of 
being laid before you, they accompany this message. 

JOHN JAY. 

Albany, I2th January, n99. 


[Senate, No. 41.] 


1 








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Resolutions of the Legislature of Virginia relative to 
the Alien and Sedition Laws. 

Virginia to wit. 

In the House of Delegates, ) 
Fridayj December 21 st, 1798. \ 

Resolved, That the General Assembly of Virginia doth unequi¬ 
vocally express a firm resolution to maintain and defend the Con¬ 
stitution of the United States, and the Constitution of this State, 
against every aggression, either foreign or domestic, and that they 
will support the government of the United States in all measures, 
warranted by the former. 

That this Assembly most solemnly declares a warm attachment 
to the union of the States, to maintain which it pledges its powers; 
and that for this end it is their duty to watch over and oppose 
every infraction of those principles which constitute the only basis 
of that union, because a faithful observance of them can alone se¬ 
cure its existence, and the public happiness. 

That this Assembly doth explicitly and peremptorily declare, 
that it views the powers of the Federal Government as resulting 
from the compact, to which the stales are parties; as limited by 
the plain sense and intention of the instrument constituting that 
compact; as no farther valid than they are authorized by the 
grants enumerated in that compact, and that in case of a delibe¬ 
rate, palpable and dangerous exercise of other powers not granted 
by the said compact, the States who are parties thereto, have the 
right, and are in duty bound to interpose for arresting the pro¬ 
gress of the evil, and for maintaining within their respective limits 
the authorities, rights and liberties appertaining to them. 

That the General Assembly doth also express its deep regret 
that a spirit has, in sundry instances, been manifested by the Fe¬ 
deral Government, to enlarge its powers by forced constructions 
of the constitutional charter which defines them; and that indica¬ 
tions have appeared of a design to expound certain general phra¬ 
ses, (which having been copied from the very limited grant of 
powers in the former articles of confederation, were the less liable 
to be misconstrued,) so as to destroy the meaning and effect of the 
particular enumeration, which necessarily explains and limits the 


4 fSlTJSlATr 

general phrases^ and so as to consolidate the States by degrees 
into one sovereignty, the obvious tendency and inevitable conse- 
quence of which -Would be, to transform the present republican; 
system of the United States into an absolute, or at best, a mixed 
monarchy. 

That the General Assembly doth particularly protest against the* 
palpable and alarming infraction of the Constitution, in the twa 
late cases of the Alien and Sedition acts,” passed at the last ses-- 
sion of Congress; the first of which exercises a power no where 
delegated to the Federal Government; and which, by uniting le¬ 
gislative and judicial powers to those of the executive, subverts 
the general principles of free government, as well as the particu¬ 
lar organization and positive provisions of the federal Constitution r 
and the other of which acts exercises in like manner a power not 
delegated by the Constitution, but on the contrary expressly and 
positively forbidden by one of the amendments thereto;, a power 
which more than any other ought to produce universal alarm, be¬ 
cause it is levelled against that right of freely examining public 
characters and measures, and of free communication among the 
people thereon, which has ever been justly deemed the only efiect- 
ual guardian of every other right. 

That this State having, by its Convention, which ratified the 
Federal Constitution, expressly declared, ^Uhat among other essen¬ 
tial rights, the liberty of conscience and of the press cannot be can¬ 
celled, abridged, restrained or modified by any authority of the 
United States,” and from its extreme anxiety to guard these rights 
from every possible attack of sophistry or ambition, having with 
other States recommended ^n amendment for that purpose, which 
amendment was in due time annexed to the Constitution, it would 
mark a reproachful inconsistency and criminal degeneracy, if an 
indifference were now shewn to the most palpable violation of one 
of the rights thus declared and secured, and to the establishment of 
a precedent which may be fatal to the other. 

That the good people of this Commonwealth having ever felt 
and continuing to feel the most sincere affection to their brethren 
of the other states, the truest anxiety for establishing and perpetu¬ 
ating the Union of all, and the most scrupulous fidelity to that 
Constitution which is the pledge of mutual friendship, and the in¬ 
strument of mutual happiness. The General Assembly doth so- 


No. 41.] 


5 


lemnly appeal to the like dispositions of the other States, in con¬ 
fidence that they will concur with this Commonwealth in declaring, 
as it does hereby declare, that the acts aforesaid are unconstitu¬ 
tional, and that the necessary and proper measures will be taken 
by each, for co-operating with this State in maintaining unimpaired 
the authorities, rights and liberties, reserved to the States respec¬ 
tively, or to the people. 

That the Governor be desired to transmit a copy of the forego¬ 
ing resolutions to the executive authority of each of the other 
States, with a request that the same may be communicated to the 
Legislature thereof. 

And that a copy be furnished to each of the senators and repre-, 
sentatives representing this State in the Congress of the United 
States. 

Attest, 

JOHN STEWART, c. h. d. 

1798, December the 24th, 

Agreed to by the Senate. 

H. BROOKE, c. s. 


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■ " Vi 70 

7 7'‘. ,‘■<1 

■ ‘J 




Resolutions of the Legislature of Kentucky, rela- 
tive to the Alien and Sedition Laws. 


In the House of Representatives, ) 
J^ovemher \0th^ 1798. ^ 

l^’he House, according to the standing order of the day, resolved 
itself into a committee of the whole on the state of the Com¬ 
monwealth, Mr. Caldwell in the chair; and after some time 
spent therein the Speaker resumed the chair, and Mr. Caldwell 
reported, that the committee had, according to order, had under 
consideration the Governor’s Address, and had come to the fol¬ 
lowing Resolutions thereupon, which he delivered in at the 
clerk’s table, where they were twice read and agreed to by the 
House. 

I. Resolved, That the several States composing the United States 
of America, are not united on the principle of unlimited submission 
to their General Government; but that by compact under the style 
and title of a Constitution for the United States and of amend¬ 
ments thereto, they constituted a General Government for special 
purposes, delegated to that Government certain definite powers, 
reserving each State to itself, the residuary mass of right to their 
own self Government; and that whensoever the General Govern¬ 
ment assumes undelegated powers, its acts are unauthoritative, 
void, and of no force: That to this compact each State acceded as 
a State, and is an integral party, its co-States forming as to itself, 
the other party: That the Government created by this compact 
was not made the exclusive or final judge of the extent of the 
powers delegated to itself; since that would have made its discre¬ 
tion, and not the constitution, the measure of its powers; but that 
as in all other cases of compact among parties having no comrhon 
judge, each party has an equal right to judge for itself, as well of 
infractions as of the mode and measure of redress. 

II. Resolved, That the Constitution of the United States having 
delegated to Congress a power to punish treason, counterfeiting 
the securities and current coin of the United States, piracies and 
felonies committed on the high seas, and offences against the laws 
of nations, and no other crimes whatever, and it being true as a 
general principle, and one of the amendments to the Constitu- 


8 


[Senate 


tion having also declared, that the powers not delegated to the 
United States by the Constitution, nor prohibited by it to the 
States, are reserved to the States respectively, or to the people,” 
therefore also the same act of Congress passed on the 14th day of 
July, 1798, and entitled ‘‘ An act in addition to the act entitled an 
act for the punishment of certain crimes against the United 
States;” as also the act passed by them on the 27th day of June, 
1798, entitled “ An act to punish frauds committed on the Bank of 
the United States,” (and all other their acts which assume to cre¬ 
ate, define, or punish crimes other than those enumerated in the 
Constitution,) are altogether void and of no force, and that the 
power to create, define, and punish such other crimes is reserved, 
and of right appertains solely and exclusively to the respective 
States, each within its own territory. 

III. Resolved^ That it is true as a general principle, and is also 
expressly declared by one of the amendments to the Constitution, 
that “ the powers not delegated to the United States by the Con¬ 
stitution, nor prohibited by it to the States, are reserved to the 
States respectively or to the people;” and that no power over the 
freedom of religion, freedom of speech, or freedom of the press 
being delegated to the United States by the Constitution, nor prohi¬ 
bited by it to the States, all lawful powers respecting the same did 
of right remain, and were reserved to the States, or to the peo¬ 
ple: That thus was manifested their determination to retain to 
themselves the right of judging how far the licentiousness of speech 
and of the press may be abridged without lessening their useful 
freedom, and how far those abuses which cannot be separated from 
their use, should be tolerated rather than the use be destroyed; and 
thus also they guarded against all abridgement by the United States 
of the freedom of religious opinions and exercises, and retained to 
themselves the right of protecting the same, as this State by a law 
passed on the general demand of its citizens, had already protected 
them from all human restraint or interference: And that in addi¬ 
tion to this general principle and express declaration, another and 
more special provision has been made by one of the amendments 
to the Constitution which expressly declares, that “Congress shall 
make no law respecting an establishment of religion, or prohibiting 
the free exercise thereof, or abridging the freedom of speech, or 
of the press,” thereby guarding in the same sentence, and under 
the same words, the freedom of religion, of speech, and of the 
press, insomuch, that whatever violates either, throws down the 


No. 41.J 9 

sanctuary which covers the others, and that libels, falsehoods, and 
defamation, equally with heresy and false religion, are withheld 
from the cognizance of federal tribunals. That therefore the act 
of the Congress of the United States passed on the 14th day of 
July, 1798, entitled “An act in addition to the act for the punish^ 
ment of certain crimes against the United States,” which does 
abridge the freedom of the press, is not law, but is altogethel: void 
and of no effect. 

IV. Resolved, That alien friends are under the jurisdiction and 
protection of the laws of the State wherein they are; that no pow¬ 
er over them has been delegated to the United States, nor prohi* 
bited to the individual States distinct from their power over citi¬ 
zens; and it being true as a general principle, and one of the 
amendments to the Constitution having also declared, that “the 
powers not delegated to the United States by the Constitution nor 
prohibited by it to the States are reserved to the States respec¬ 
tively or to the people,” the act of the Congress of the United 
States passed on the 22d day of June, 1798, entitled “An act con¬ 
cerning aliens,” which assumes power over alien friends not dele¬ 
gated by the Constitution, is not law, but is altogether void and of 
no force. 

V. Resolved, That in addition to the general principle as well 
as the express declaration, that powers not delegated are reserved, 
another and more special provision inserted in the Constitution 
from abundant caution has declared, “ that the migration or im¬ 
portation of such persons as any of the States now existing shall 
think proper to admit, shall not be prohibited by the Congress prior 
to the year 1808.” That this Commonwealth does admit the mi¬ 
gration of alien friends described as the subject of the said act con¬ 
cerning aliens; that a provision against prohibiting their migration, 
is a provision against all acts equivalent thereto, or it would be nu¬ 
gatory; that to remove them when migrated is equivalent to a pro¬ 
hibition of their migration, and is therefore contrary to the said 
provision of the Constitution, and void. 

VI. Resolved, That the imprisonment of a person under the pro¬ 
tection of the lav7s of this Commonwealth on his failure to obey 
the simple order of the President to depart out of the United 
States, as is undertaken by the said act entitled “ An act concern¬ 
ing Aliens,” is contrary to the Constitution, one amendment to 

[Senate, No. 41.] 2 


10 


[Senate: 

which has provided, that no person shall be deprived of liberty 
without due process of law,” and that another having provided 

that in all criminal prosecutions, the accused shall enjoy the right 
to a public trial by an impartial jury, to be informed of the nature 
and cause of the accusation, to be confronted with the witnesses 
against him, to have compulsory process for obtaining witnesses in 
his favor, and to have the assistance of counsel for his defence,’^ 
the same act undertaking to authorize the President to remove a 
person out of the United States who is under the protection of the 
law, on his own suspicion, without accusation, without jury, with¬ 
out public trial, without confrontation of the witnesses against him, 
without having witnesses in his favor, without defence, without 
counsel, is contrary to these provisions also of the Constitution, is 
therefoi’e not law, but utterly void and of no force. 

That transferring the power of judging any person who is under 
the protection of the law^s, from the Courts to the President of the 
United States, as is undertaken by the same act concerning aliens, 
is against the article of the Constitution which provides, that the 
judicial power of the United States shall be vested in Courts, the 
Judges of which shall hold their offices during good behavior,’’ and 
that the said act is void for that reason also; and it is further to 
be noted, that this transfer of judiciary power is to that magistrate 
of the General Government who already possesses all the Execu¬ 
tive, and a qualified negative in all the Legislative powers. 

VII. Resolved^ That the construction applied by the General Go¬ 
vernment (as is evinced by sundry of their proceedings) to those 
parts of the Constitution of the United States which delegate to 
Congress a power to lay and collect taxes, duties, imposts, and ex¬ 
cises; to pay the debts, and provide for the common defence, and 
general welfare of the United States, and to make all laws which 
shall be necessary and proper for carrying into execution the pow¬ 
ers vested by the Constitution in the Government of the United 
States, or any department thereof, goes to the destruction of all 
the limits prescribed to their power by the Constitution—That 
words meant by that instrument to be subsiduary only to the exe¬ 
cution of the limited powers, ought not to be so construed as them¬ 
selves to give unlimited powers, nor a part so to be taken, as to de¬ 
stroy the whole residue of the instrument: That the proceedings 
of the General Government under color of these articles, will be 
a fit and necessary subject for revisal and correction, at a time of 


11 


No. 41.] 

greater tranquillity, while those specified in the preceding resolu¬ 
tions call for immediate redress. 

VIIL Resolved, That the preceding resolutions be transmitted to 
the Senators and Representatives in Congress from this Common¬ 
wealth, who are hereby enjoined to present the same to their re¬ 
spective Houses, and to use their best endeavors to procure at the 
next session of Congress, a repeal of the aforesaid unconstitutional 
and obnoxious acts: 

IX. Resolved, lastly. That the Governor of this Commonwealth 
be, and is hereby authorised and requested to communicate the pre¬ 
ceding resolutions to the Legislatures of the several States, to as¬ 
sure them that this Commonwealth considers Union for specified 
national purposes, and particularly for those specified in their late 
Federal Compact, to be friendly to the peace, happiness, and pros¬ 
perity of all the States: that faithful to that compact, according to 
the plain intent and meaning in which it was understood and ac¬ 
ceded to by the several parties, it is sincerely anxious for its pre¬ 
servation: that it does also believe, that to take from the States 
all the powers of self-government, and transfer them to a general 
and consolidated government, without regard to the special delega¬ 
tions and reservations solemnly agreed to in that compact, is not 
for the peace, happiness, or prosperity of these States: And that 
therefore, this Commonwealth is determined, as it doubts not its 
co-States are, tamely to submit to undelegated and consequently 
unlimited powers in no man or body of men on earth: that if the 
acts before specified should stand, these conclusions would flow 
from them; that the General Government may place any act they 
think proper on the list of crimes and punish it themselves, whether 
enumerated or not enumerated by the Constitution as cognizable 
by them: that they may transfer its cognizance to the President or 
any other person, who may himself be the accuser, counsel, judge, 
and jury, whose suspicions may be the evidence, his order the sen¬ 
tence, his officer the executioner, and his breast the sole record of 
the transaction: that a very numerous and valuable description of 
the inhabitants of these States, being by this precedent reduced as 
outlaws to the absolute dominion of one man, and the barrier of the 
Constitution thus swept away from us all, no rampart now remains 
against the passions and the power of a majority of Congress, to pro¬ 
tect from a like exportation or other more grievous punishment the 
minority of the same body, the Legislatures, Judges, Governors, and 


12 


[Senate 


Counsellors of the States, nor their other peaceable inhabitants who 
may venture to reclaim the constitutional rights and liberties of 
the States and people, or who for other causes, good or bad, may 
be obnoxious to the views or marked by the suspicions of the Pre¬ 
sident, or be thought dangerous to his or their elections or other 
interests public or personal: that the friendless alien has indeed 
been selected as the safest subject of a first experiment: but the 
citizen will soon follow, or rather has already followed; for, al¬ 
ready has a Sedition act marked him as its prey: that these and 
successive acts of the same character, unless arrested on the thresh- 
hold, may tend to drive these States into revolution and blood, and 
will furnish new calumnies against Republican Governments, and 
new pretexts for those who wish it to be believed, that man cannot 
be governed but by a rod of iron: that it would be a dangerous 
delusion were a confidence in the men of our choice to silence our 
fears for the safety of our rights: that confidence is every where 
the parent of despotism: free government is founded in jealousy 
and not in confidence; it is jealousy and not confidence which pre¬ 
scribes limited Constitutions to bind down those whom we are 
obliged to trust with power: that our Constitution has according¬ 
ly fixed the limits to which and no further our confidence may go; 
and let the honest advocate of confidence read the Alien and Se¬ 
dition acts, and say if the Constitution has not been wise in fixing 
limits to the Government it created, and whether we should be 
wise in destroying those limits'? Let him say what the Government 
is if it be not a tyranny, which the men of our choice have con¬ 
ferred on the President, and the President of our choice has as¬ 
sented to and accepted over the friendly strangers, to whom the 
mild spirit of our country and its laws had pledged hospitality and 
protection: that the men of our choice have more respected the 
bare suspicions of the President than the solid rights of innocence, 
the claims of justification, the sacred force of truth, and the forms 
and substance of law and justice. In questions of power then let 
no more be heard of confidence in man, but bind him down from 
mischief by the chain of the Constitution. That this Common¬ 
wealth does therefore call on its co-States for an expression of 
their sentiments on the acts concerning aliens, and for the punish¬ 
ment of certain crimes herein before specified, plainly declaring 
whether these acts are or are not authorised by the Federal Com¬ 
pact 'I And it doubts not that their sense will be so announced as 
to prove their attachment unaltered to limited government, whether 


13 


No. 41.] 

general or particular, and that the rights and liberties of their co- 
States will be exposed to no dangers by remaining embarked on a 
common bottom with their own: That they will concur with this 
Commonwealth in considering the said acts as so palpably against 
the Constitution as to amount to an undisguised declaration, that 
the compact is not meant to be the measure of the powers of the 
General Government, but that it will proceed in the exercise over 
these States of all powers whatsoever: That they will view this 
as seizing the rights of the States and consolidating them in the 
hands of the General Government with a power assumed to bind 
the States (not merely in cases made federal) but in all cases what¬ 
soever, by laws made, not with their consent, but by others against 
their consent: That this would be to surrender the form of govern¬ 
ment we have chosen, and to live under one deriving its powers 
from its own will, and not from our authority; and that the co- 
States recurring to their natural right in cases not made federal, 
will concur in declaring these acts void and of no force, and will 
each unite with this commonwealth in requesting their repeal at 
the next session of Congress. 

EDMUND BULLOCK, S. H. R. 
JOHN CAMPBELL, S. S. P. T. 
Passed the House of Representatives, Nov. 10th, 1798. 

Attest, 

THOMAS TODD, C. H. R. 

IN SENATE, November 13th, 1798, unanimously concurred in. 

Attest, B. THRUSTON, Clk. Sen. 

Approved, November 16th, 1798. 

JAMES GARRARD, G. K. 


BY THE GOVERNOR, 


HARRY TOULMIN, V 
Secretary of State. 


VIRGINIA. 

HOUSE OF DELEGATES. 


REPORT 

Of the committee to whom were referred the com¬ 
munications of various States, relative to the Re¬ 
solutions of the last General Assembly of this 
State, concerning the Alien and Sedition Laws. 

Whatever room might be found in the proceedings of some of 
the States, who have disapproved of the resolutions of the General 
Assembly of this Commonwealth, passed on the 21st day of De¬ 
cember, 1798, for painful remarks on the spirit and manner of 
those proceedings, it appears to the committee most consistent with 
the duty as well as dignity of the General Assembly, to hasten an 
oblivion of every circumstance which might be construed into a di¬ 
minution of mutual respect, confidence and affection, among the 
members of the Union. 

The committee have deemed it a more useful task to revise, 
wfith a critical eye, the resolutions which have met with this dis¬ 
approbation; to examine fully the several objections and arguments 
which have appeared against them; and to inquire whether there 
be any errors of fact, of principle, or of reasoning, which the can¬ 
dor of the General Assembly ought to acknowledge and correct. 

The first of the Resolutions is in the words following: 

Resolved, That the General Assembly of Virginia doth unequivo¬ 
cally express a firm resolution to maintain and defend the Constitu¬ 
tion of the United States, and the Constitution of this State, against 
every aggression, either foreign or domestic, and that they will sup¬ 
port the Government of the United States in all measures warranted 
by the former. 

No unfavorable comment can have been made on the sentiments 
here expressed. To maintain and defend the Constitution of the 



16 [SenatU 

United States, and of their own State, against every aggression, 
both foreign and domestic, and to support the Government of the 
United States in all measures warranted by their Constitution, are 
duties which the General Assembly ought always to feel, and to 
which, on such an occasion, it was evidently proper to express 
their sincere and firm adherence. 

In their next resolution— The General Assembly most solemnly 
declares a warm attachment to the union of the States^ to maintain 
which it pledges all its powers ; and thaty for this end, it is their 
their duty to watch over and oppose every infraction of those princi- 
ples, which constitute the only basis of that Union, because a faithful 
observance of them can alone secure its existence and the public hap¬ 
piness. 

The observation just made is equally applicable to this solemn 
declaration, of warm attachment to the Union, and this solemn 
pledge to maintain it; nor can any question arise among enlight¬ 
ened friends of the Union, as to the duty of watching over and op¬ 
posing every infraction of those principles which constitute its ba¬ 
sis, and a faithful observance of which can alone secure its exist¬ 
ence, and the public happiness thereon depending. 

The third resolution is in the words following: 

That this Assembly doth explicitly and peremptorily declare, that 
it views the powers of the Federal Government, as resulting from 
the Compact, to which the States are parties, as limited by the plain 
sense and intention of the Instrument constituting that Compact; 
as no farther valid than they are authorised by the grants enumera¬ 
ted in that Compact; and that, in case of a deliberate, palpable and 
dangerous exercise of other powers, not granted by the said Compact, 
the States who are parties thereto, have the right, and are in duty 
hound, to interpose, for arresting the progress of the evil, and for 
maintaining within their respective limits, the authorities, rights and 
liberties appertaining to them. 

On this resolution the committee have bestowed all the atten¬ 
tion which its importance merits: they have scanned it, not mere¬ 
ly with a strict, but with a severe eye; and they feel confidence 
in pronouncing, that, in its just and fair construction, it is unexcep- 
tionably true in its several positions, as well as constitutional and 
conclusive in its inferences. 



17 


No. 41. J 

The resolution declares, first, that it views the powers of the 
Federal Government as resulting from the compact to which the 
States are parties;^’ in other words, that the federal powers are 
derived from the Constitution, and that the Constitution is a com* 
pact to which the States are parties. 

Clear as the position must seem, that the Federal powers are 
derived from the Constitution, and from that alone, the committee 
are not unapprised of a late doctrine, which opens another source 
of Federal powers, not less extensive and important than it is neW 
and unexpected. The examination of this doctrine will be most 
conveniently connected with a review of a succeeding resolution4 
The committee satisfy themselves here with briefly remarking^ 
that in all the cotemporary discussions and comments which the 
Constitution underwent, it was constantly justified and recom¬ 
mended, on the ground that the powers not given to the govern¬ 
ment were withheld from it; and that if any doubt could have ex¬ 
isted on this subject, under the original text of the Constitution, it 
is removed, as far as words could remove it, by the 12th amend¬ 
ment, now a part of the Constitution, which expressly declares, 

that the powers not delegated to the United States by the Con¬ 
stitution, nor prohibited by it to the States, are reserved to the 
States respectively, or to the people.” 

The other position involved in this branch of the resolution, 
namely, ‘‘ that the States are parties to the Constitution or com¬ 
pact,” is, in the judgment of the committee, equally free from ob¬ 
jection. It is indeed true, that the term “ States” is sometimes 
used in a vague sense, and sometimes in different senses, accord¬ 
ing to the subject to which it is applied. Thus, it sometimes 
means the separate sections of territory occupied by the political 
societies within each; sometimes the particular governments es¬ 
tablished by those societies; sometimes those societies as organ¬ 
ized into those particular governments; and, lastly, it means the 
people composing those political societies, in their highest sove¬ 
reign capacity. Although it might be wished that the perfection 
of language admitted less diversity in the signification of the s^me 
words, yet little inconveniency is produced by it, where the true 
sense can be collected with certainty from the different applica¬ 
tions. In the present instance, whatever different constructions 
of the term “ States,” in the resolution, may have been entertain¬ 
ed, all will at least coneur in that last mentioned; because, in that 

[Senate No. 41.] 3 


18 


[Senate 


sense, the Constitution was submitted to the States:” in that sense 
the “ States” ratified it: and, in that sense of the term States,” they 
are consequently parties to the compact, from which the powers of 
the Federal Government result. 

The next position is, that the General Assembly views the pow¬ 
ers of the Federal Government, as limited by the plain sense and 
intention of the instrument constituting that compact,” and as 
no farther valid than they are authorized by the grants therein 
enumerated.” It does not seem possible that any just objection 
can lie against either of these clauses. The first amounts merely 
to a declaration that the compact ought to have the interpretation 
plainly intended by the parties to it; the other to a declaration 
that it ought to have the execution and effect intended by them. If 
the powers granted, be valid, it is solely because they are granted: 
and, if the granted powers are valid, because granted, all other pow¬ 
ers not granted, must not be valid. 

The resolution, having taken this view of the Federal compact, 
proceeds to infer, “that, in case of a deliberate, palpable and dan¬ 
gerous exercise of other powers, not granted by the said compact, 
the States, who are parties thereto, have the right, and are in du¬ 
ty bound to interpose for arresting the progress of the evil, and 
for maintaining within their respective limits, the authorities, 
rights arid liberties appertaining to them.” 

It appears to your committee to be a plain principle, founded in 
common sense, illustrated by common practice, and essential to the 
nature of compacts, that where resort can be had to no tribunal, 
superior to the authority of the parties, the parties themselves must 
be the rightful judges in the last resort, whether the bargain made 
has been pursued or violated. The Constitution of the United 
States was formed by the sanction of the States, given by each in 
its sovereign capacity. It adds to the stability and dignity, as 
well as to the authority of the Constitution, that it rests on this le¬ 
gitimate and solid foundation. The States, then, being the parties 
to the Constitutional compact, and in their sovereign capacity, it 
follows of necessity, that there can be no tribunal above their au¬ 
thority, to decide in the last resort, whether the compact made by 
them be violated; and, consequently, that, as the parties to it, they 
must themselves decide, in the last resort, such questions as may 
be of sufficient magnitude to require their interposition. 


No. 41.] 


19 


It does not follow, however, that because the States, as sove¬ 
reign parties to their Constitutional compact, must ultimately de¬ 
cide whether it has been violated, that such a decision ought to be 
interposed, either in a hasty manner, or on doubtful and inferior oc¬ 
casions. Even in the case of ordinary conventions between diffe¬ 
rent nations, where, by the strict rule of interpretation, a breach 
of a part may he deemed a breach of the whole; every part being 
deemed a condition of every other part, and of the whole, it is al¬ 
ways laid down that the breach must be both wilful and material 
to justify an application of the rule. But in the case of an intimate 
and Constitutional Union like that of the United States, it is evi¬ 
dent that the interposition of the parties, in their sovereign capa¬ 
city, can be called for by occasions only, deeply and essentially 
affecting the vital principles of their political system. 

The resolution has accordingly guarded against any misappre¬ 
hension of its object, by expressly requiring for such an interposi¬ 
tion, the case of a deliberate, palpable and dangerous breach of 
the Constitution, by the exercise of powers not granted by it.” It 
must be a case, not of a light and transient nature, but of a nature 
dangerous to the great purposes for which the Constitution was es¬ 
tablished. It must be a case, moreover, not obscure or doubtful 
in its construction, but plain and palpable. Lastly, it must be a 
case not resulting from a partial consideration, or hasty determi¬ 
nation; but a case stampt with a final consideration and deliberate 
adherence. It is not necessary, because the resolution does not re¬ 
quire that the question should be discussed, how far the exercise 
of any particular power, ungranted by the Constitution, would jus¬ 
tify the interposition of the parties to it. As cases might easi¬ 
ly be stated, which none would contend ought to fall within that 
description; cases, on the other hand, might, with equal ease, be 
stated, so flagrant and so fatal, as to unite every opinion in placing 
them within the description. 

But the resolution has done more than guard against miscon¬ 
struction, by expressly referring to cases of a deliberate, palpa¬ 
ble and dangerous nature. It specifies the object of the interposi¬ 
tion which it contemplates, to be solely that of arresting the pro¬ 
gress of the evil of usurpation, and of maintaining the authorities, 
rights and liberties appertaining to the States, as parties to the 

onstitution. 


20 


[Senate 


From this view of the resolution, it would seem inconceivable 
that it can incur any just disapprobation from those, who laying 
aside all momentary impressions, and recollecting the genuine 
source and object of the Federal Constitution, shall candidly and 
accurately interpret the meaning of the General Assembly. If the 
deliberate exercise of dangerous powers, palpably withheld by the 
Constitution, could not justify the parties to it, in interposing even 
so far as to arrest the progress of the evil, and thereby to preserve 
the Constitution itself, as well as to provide for the safety of the 
parties to it; there would be an end to all relief from usurped pow¬ 
er, and a direct subversion of the rights specified or recognized un¬ 
der all the State Constitutions, as well as a plain denial of the funda¬ 
mental principle on which our independence itself was declared. 

But it is objected, that the judical authority is to be regarded as 
the sole expositor of the Constitution, in the last resort; and it may 
be asked for what reason, the decalration by the General Assembly, 
supposing it to be theoretically true, could be required at the pre¬ 
sent day and in so solemn a manner. 

On this objection it might be observed^7'si : that there may be 
instances of usurped power, which the forms of the Constitution 
would never draw within the control o.f the judicial department: 
secondly^ that if the decision of the judiciary be raised above the 
authority of the sovereign parties to the Constitution, the decisions 
of the other departments, not carried by the forms of the Constitu¬ 
tion before the judiciary, must be equally authoritative and final 
with theMecisions of that department. But the proper answer to 
the objection is, that the resolution of the General Assembly re¬ 
lates to those great and extraordinary cases, in which all the forms 
of the Constitution may prove ineffectual against infractions dan¬ 
gerous to the essential rights of the parties to it. The resolution 
supposes that dangerous powers, not delegated, may not only be 
usurped and executed by the other departments, but that the judi¬ 
cial department also may exercise or sanction dangerous powers 
beyond the grant of the Constitution; and consequently, that the 
ultimate right of the parties to the Constitution, to judge whether 
the compact has been dangerously violated, must extend to viola¬ 
tions by one delegated authority, as well as by another; by the ju¬ 
diciary, as well as by the executive, or the Legislature. 


21 


No. 41 .] 

However true, therefore, it may be that the judicial department 
is, in all questions submitted to it by the forms of the Constitution, 
to decide in the last resort, this 1-esort must necessarily be deemed 
the last in relation to the authorities of the other departments of 
the government; not in relation to the rights of the parties to the 
constitutional compact, from which the judicial as well as the other 
departments hold their delegated trusts. On any other hypothesis, 
the delegation of judicial power would annul the authority delega¬ 
ting it; and the concurrence of this department with the others in 
usurped powers, might subvert forever, and beyond the possible 
reach of any rightful remedy, the very Constitution, which all 
were instituted to preserve. 

The truth delared in the resolution being established, the ex¬ 
pediency of making the declaration at the present day, may safely 
be left to the temperate consideration and candid judgment of the 
American public. It will be remembered, that a frequent recur¬ 
rence to fundamental principles, is solemnly enjoined by most of the 
State Constitutions, and particularly by our own, as a necessary 
safeguard against the danger of degeneracy to which republics are 
liable, as well as other governments, though in a less degree than 
others. And a fair comparison of the political doctrines not unfre¬ 
quent at the present day, with those which characterized the epoch 
of our revolution, and which form the basis of our republican Con¬ 
stitutions, will best determine whether the declaratory recurrence 
here made to those principles, ought to be viewed as unseasonable 
and improper, or as a vigilant discharge of an important duty. The 
authority of the Constitutions over governments, and of the sove¬ 
reignty of the people over Constitutions, are truths which are at 
ail times necessary to be kept in mind; and at no time perhaps 
more necessary than at the present. 

fourth resolution stands as follows: 

That the General Assembly doth also express its deep regret, that 
a spirit has in sundry instances, been manifested by the Federal Go¬ 
vernment, to enlarge its powers by forced constructions of the Con¬ 
stitutional charter, which defines them; and that indications have 
appeared of a design to expound certain general phrases, {which, ha¬ 
ving been copied from the very limited grant of powers in the former 
articles of confederation, were less liable to be misconstrued,) so 
as to destroy the meaning and effect of the particular enumeration 


22 


[Senate 


which necessarily explains^ and limits the general phrases; and so 
as to consolidate the States hy degrees, into one sovereignty, the ob¬ 
vious tendency and inevitable resuU of which would be, to transform 
the present republican system of the United States, into an absolute, 
or at best, a mixed monarchy. 

first question here to be considered, is, whether a spirit has 
in sundry instances been manifested by the Federal Government 
to enlarge its powers by forced constructions of the constitutional 
charter. 

The General Assembly having declared their opinion merely by 
regretting in general terms that forced constructions for enlarging 
the federal powers have taken place, it does not appear to the com¬ 
mittee necessary to go into a specification of every instance to 
which the resolution may allude. The Alien and Sedition Acts 
being particularly named in a succeeding resolution, are of course 
to be understoood as included in the allusion. Omitting others 
which have less occupied public attention, or been less extensively 
regarded as unconstitutional, the resolution may be presumed to 
refer particularly to the bank law, which from the circumstances 
of its passage, as well as the latitude of construction on which it is 
founded, strikes the attention with singular force; and the carriage 
tax, distinguished also by circumstances in its history having a si¬ 
milar tendency. Those instances alone, if resulting from forced 
construction and calculated to enlarge the powers of the Federal 
Government, as the committee cannot but Conceive to be the case, 
sufficiently warrant this part of the resolution. The committee 
have not thought it incumbent on them to extend their attention to 
laws which have been objected to, rather as varying the constitu¬ 
tional distribution of powers in the Federal Government, than as 
an absolute enlargement of them; because instances of this sort, 
however important in their principles and tendencies, do not ap¬ 
pear to fall strictly within the text under review. 

The other questions presenting themselves, are—1. Whether in¬ 
dications have appeared of a design to expound certain general 
phrases copied from the “ Articles of Confederation,” so as to de¬ 
stroy the effect of the particular enumeration explaining and limi¬ 
ting their meaning. 2. Whether this exposition would by degrees 
consolidate the States into one sovereignty. 3. Whether the ten- 


No. 41. j ■' 23 

dency and result of this consolidation would be to transform the re¬ 
publican system of the United States into a monarchy. 

1. The general phrases here meant must be those of providing 
for the common defence and general welfare.” 

In the ‘‘Articles of Confederation,” the phrases are used as fol¬ 
lows, in art. VIII. “ All charges of war, and all other expenses 
that shall be incurred/or the common defence and general welfare, 
and allowed by the United States in Congress assembled, shall be 
defrayed out of a common treasury, which shall be supplied by the 
several States, in proportion to the value of all land within each 
State, granted to, or surveyed for any person, as such land and the 
buildings and improvements thereon shall be estimated, according 
to such mode as the United States in Congress assembled, shall 
from time to time direct and appoint,” 

In the existing Constitution, they make the following part of Sec. 
8. “ The Congress shall have power, to lay and collect taxes, du¬ 

ties, imposts and excises, to pay the debts, and provide for the 
common defence and general welfare of the United States.” 

This similarity in the use of these phrases in the two great fede¬ 
ral charters might well be considered as rendering their meaning 
less liable to be misconstrued in the latter; because it will scarcely 
be said, that in the former they were ever understood to be either 
a general grant of power, or to authorise the requisition or appli¬ 
cation of money by the old Congress to the common defence and 
general welfare, except in the cases afterwards enumerated, which 
explained and limited their meaning; and if such was the limited 
meaning attached to these phrases in the very instrument revised 
and re-modelled by the present Constitution, it can never be sup¬ 
posed that when copied into this Constitution, a different meaning 
ought to be attached to them. 

That, notwithstanding this remarkable security against miscon¬ 
struction, a design has been indicated to expound these phrases in 
the Constitution, so as to destroy the effect of the particular enu¬ 
meration of powers by which it explains and limits them, must have 
fallen under the observation of those who have attended to the 
course of public transactions. Not to multiply proofs on this sub¬ 
ject, it will suffice to refer to the Debates of the Federal Legisla- 


24 


fSENAT*: 

ture, in which arguments have on different occasions been drawn, 
with apparent effect, from these phrases, in their indefinite meaning. 

To these indications might be added, without looking farther, 
the official report on manufactures, by the late Secretary of the 
Treasury, made on the 5th of December, 1791; and the report of 
a committee of Congress, in January, 1797, on the promotion of 
Agriculture. In the first of these it is expressly contended to be¬ 
long ‘‘to the discretion of the National Legislature to pronounce 
“ upon the objects which concern the general welfare, and for 

which, under that description, an appropriation of money is re- 
“ quisite and proper. And there seems to be no room for a doubt. 
“ that whatever concerns the general interests of learning, of ag- 
“ RicuLTURE, of MANUFACTURES, and of COMMERCE, are within the 
“ sphere of the National Councils, as far as regards an application 

of moneijy The latter report assumes the same latitude of pow¬ 
er in the National Councils, and applies it to the encouragement of 
Agriculture, by means of a society to be established at the seat of 
government. Although neither of these reports may have receiv¬ 
ed the sanction of a law carrying it into effect; yet, on the other 
hand, the extraordinary doctrine contained in both, has passed with¬ 
out the slightest positive mark of disapprobation from the authority 
to which it was addressed. 

Now, whether the phrases in question be construed to authorise 
every measure relating to the common defence and general wel¬ 
fare, as contended by some; or every measure only in which there 
might be an application of money, as suggested by the caution of 
others; the effect must substantially be the same, in destroying the 
import and force of the particular enumeration of powers which fol¬ 
low these general phrases in the Constitution. For, it is evident, 
that there is not a single power whatever, which may not have 
some reference to the common defence, or the general welfare; 
nor a power of any magnitude, which, in its exercise, does not in¬ 
volve or admit an application of money. The Government, there¬ 
fore, which possesses power in either one or other of these ex¬ 
tents, is a Government without the limitations formed by a particu¬ 
lar enumeration of powers; and consequently, the meaning and ef¬ 
fect of this particular enumeration is destroyed by the exposition 
given to these general phrases. 


No. 41.] 135 

This conclusion will not be affected by an attempt to qualify the 
power over the “ general welfare,” by referring it to cases where 
the general welfare is beyond the reach of separate provisions by 
the individual States; and leaving to these their jurisdictions in 
cases to which their separate provisions may be competent. For, 
as the authority of the individual States must in all cases be incom¬ 
petent to general regulations operating through the whole, the au¬ 
thority of the United States would be extended to every object re¬ 
lating to the general welfare, which might, by any possibility, be 
provided for by the general authority. This qualifying construc¬ 
tion, therefore, would have little, if any tendency, to circumscribe 
the power claimed under the latitude of the terms general wel¬ 
fare.” 

The true and fair construction of this expression, both in the ori¬ 
ginal and existing Federal compacts, appears to the committee too 
obvious to be mistaken. In both, the Congress is authorised to 
provide money for the common defence and general welfare. In 
both, is subjoined to this authority, an enumeration of the cases to 
which their powers shall extend. Money cannot be applied to the 
general welfare, otherwise than by an application of it to some par¬ 
ticular measure, conducive to the general welfare. Whenever, 
therefore, money has been raised by the general authority, and is 
to be applied to a particular measure, a question arises, whether 
the particular measure be within the enumerated authorities vest¬ 
ed in Congress. If it be, the money requisite for it may be applied 
to it; if it be not, no such application can be made. This fair and 
obvious interpretation coincides with, and is enforced by, the clause 
in the Constitution, which declares, that “no money shall be drawn 
from the Treasury, but in consequence of appropriations by law.” 
An appropriation of money to the general welfare would be deem¬ 
ed rather a mockery than an observance of this Constitutional in¬ 
junction. 

2. Whether the exposition of the general phrases here combat¬ 
ted would not, by degrees, consolidate the States into one sove¬ 
reignty, is a question, concerning which the committee can per¬ 
ceive little room for difference of opinion. To consolidate the 
States into one sovereignty, nothing more can be wanted, than to 
supersede their respective sovereignties in the cases reserved to 
them, by extending the sovereignty of the United States to all ca¬ 
ses of the “general welfare,” that is to say, to all cases whatever. 

Senate, No. 41.] 4 


26 [Senate- 

3. That the obvious tendency and inevitable result of a consoli' 
dation of the States into one sovereignty, would be to transform the 
republican system of the United States into a monarchy, is a point 
which seems to have been sufficiently decided by the general sen¬ 
timent of America. In almost every instance of discussion, relat¬ 
ing to the consolidation in question, its certain tendency to pave 
the way to monarchy seems not to have been contested. The 
prospect of such a consolidation has formed the only topic of con¬ 
troversy. It would be unnecessary, therefore, for the committee 
to dwell long on the reasons which support the position of the 
General Assembly. It may not be improper, however, to remark 
two consequences, evidently flowing from an extension of the 
Federal powers to every subject falling within the idea of the 
“general welfare.” 

One consequence must be, to enlarge the sphere of discretion al¬ 
lotted to the Executive Magistrate. Even within the Legislative 
limits, properly defined by the Constitution, the difficulty of ac¬ 
commodating legal regulations to a country so great in extent and 
so various in its circumstances, has been much felt; and has led to 
occasional investments of power in the Executive, which involve 
perhaps as large a portion of discretion as can be deemed consis¬ 
tent with the nature of the Executive trust. In proportion as the 
objects of Legislative care might be multiplied, would the time al¬ 
lowed for each be diminished, and the difficulty of providing uni¬ 
form and particular regulations for all be increased. From these 
sources would necessarily ensue a greater latitude to the agency 
of that department which is always in existence, and which could 
best mould regulations of a general nature, so as to suit them to 
the diversity of particular situations. And it is in this latitude, as 
a supplement to the deficiency of the laws, "that the degree of Ex¬ 
ecutive prerogative materially consists. 

The other consequence would be, that of an excessive augmen¬ 
tation of the offices, honors and emoluments depending on the Ex¬ 
ecutive will. Add to the present legitimate stock, all those of eve¬ 
ry description which a consolidation of the States would take from 
them, and turn over to the Federal Government, and the patronage 
of the Executive would necessarily be as much swelled in this case 
as its prerogative would be in the other. 


27 


Ko. 41.] 

This disproportionate increase of prerogative and patronage, 
must, evidently, either enable the Chief Magistrate of the Union 
by quiet means to secure his re-election from time to time, and 
finally, to regulate the succession as he might please; or, by giving 
so transcendant an importance to the office, would render the elec¬ 
tions to it so violent and corrupt, that the public voice itself might 
call for an hereditary in place of an elective succession. Which¬ 
ever of these events might follow the transformation of the repub¬ 
lican system of the United States into a monarchy, anticipated by 
the General Assembly from a consolidation of the States into one 
sovereignty, would be equally accomplished; and whether it would 
be into a mixed or an absolute monarchy, might depend on too 
many contingencies to admit of any certain foresight. 

The resolution next in order is contained in the following terms: 

That the General Assembly doth particularly protest against the 
palpable and alarming infractions of the Constitution, in the two 
late cases of the ^^Alien and Sedition Actsf passed at the last ses¬ 
sion of Congress ; the first of which exercises a power no where de¬ 
legated to the Federal Government, and which, by uniting Legisla¬ 
tive and Judicial powers to those of Executive, subverts the general 
principles of a free government, as well as the particular organiza¬ 
tion and positive provisions of the Federal Constitution ; and the 
other of which acts exercises, in like manner, a power not delegated 
by the Constitution; but, on the contraiy, expressly and positively 
forbidden by one of the amendments thereto: a power which, more 
than any other, ought to produce universal alarm, because it is le¬ 
velled against that right of freely examining public characters and 
measures, and of free communication among the people thereon, 
tvhich has ever been justly deemed the only effectual guardian of 
every other right. 

The subject of this resolution having, it is presumed, more par¬ 
ticularly led the General Assembly into the proceedings which 
they communicated to the other States, and being in itself of pe¬ 
culiar importance, it deserves the most critical and faithful inves¬ 
tigation, for the length of which no other apology will be neces¬ 
sary. 

The subject divides itself into, first, “ The Alien Act; second¬ 
ly, “ The Sedition Act.” 



28 


[SfiNATK 

Of the Alien Act/^ it is affirmed by the resolution, 1st. That 
it exercises a power no where delegated to the Federal Govern¬ 
ment. 2d. That it unites Legislative and Judicial powers to those 
of the Executive. 3d. That this union of power subverts the ge¬ 
neral principles of free government. 4th. That it subverts the 
particular organization and positive provisions of the Federal Con¬ 
stitution. 

In order to clear the way for a correct view of the first position, 
several observations will be premised. 

In the first place; it is to be borne in mind, that it being a cha¬ 
racteristic feature of the Federal Constitution, as it was originally 
ratified, and an amendment thereto having precisely declared, 
“ That the powers not delegated to the United States by the Con¬ 
stitution, nor prohibited by it to the States, are reserved to the 
States respectively, or to the people;” it is incumbent in this, as in 
every other exercise of power by the Federal Government, to prove 
from the Constitution, that it grants the particular power exercised. 

The next observation to be made, is, that much confusion and 
fallacy, have been thrown into the question, by blending the two 
cases of aliens, members of a hostile nation ; and aliens, members of 
friendly nations. These two cases are so obviously, and so essen¬ 
tially distinct, that it occasions no little surprise that the distinction 
should have been disregarded: and the surprise is so much the 
greater, as it appears that the two cases are actually distinguished 
by two separate acts of Congress, passed at the same session, and 
comprised in the same publication; the one providing for the case 
of “alien enemies;” the other “ concerning aliens” indiscriminate¬ 
ly; and consequently extending to aliens of every nation in peace 
and amity with the United States. With respect to alien enemies, 
no doubt has been intimated as to the Federal authority over them; 
the Constitution having expressly delegated to Congress the power 
to declare war against any nation, and of course to treat it and all 
its members as enemies. With respect to aliens, who are not ene¬ 
mies, but members of nations in peace and amity with the United 
States, the power assumed by the act of Congress, is denied to be 
Constitutional; and it is accordingly against this act, that the pro¬ 
test of the General Assembly is expressly and exclusively directed. 


29 


No. 41.] 

A third observation is, that were it admitted, is contended, 
that the “ act concerning Aliens,” has for its object, not a peMal, 
but a preventive justice; it would still remain to be proved that it 
comes within the Constitutional power of the Federal Legislature: 
and if within its power, that the Legislature has exercised it in a 
Constitutional manner. 

In the administration of preventive justice, the following princi¬ 
ples have been held sacred; that some probable ground of suspi¬ 
cion be exhibited before some Judicial authority; that it be sup¬ 
ported by oath or affirmation; that the party may avoid being 
thrown into confinement, by finding pledges or sureties for his le¬ 
gal conduct sufficient in the judgment of some Judicial authority; 
that he may have the benefit of a writ of habeas corpus, and thus 
obtain his release, if wrongfully confined; and that he may at any 
time be discharged from his recognizance, or his confinement, and 
restored to his former liberty and rights, on the order of the pro¬ 
per Judicial authority, if it shall see sufficient cause. 

All these principles of the only preventive justice known to Ame¬ 
rican jurisprudence, are violated by the Alien act. The ground of 
suspicion is to be judged of, not by any Judicial authority, but by 
the Executive Magistrate alone: no oath or affirmation is requir¬ 
ed; if the suspicion be held reasonable by the President, he may 
order the suspected Alien to depart the territory of the United 
States, without the opportunity of avoiding the sentence, by find¬ 
ing pledges for his future good conduct; as the President may limit 
the time of departure as he pleases, the benefit of the writ of habeas 
corpus, may be suspended with respect to the party, although the 
Constitution ordains, that it shall not be suspended, unless when 
the public safety may require it in case of rebellion or invasion, 
neither of which existed at the passage of the act; and the party 
being, under the sentence of the President, either removed from 
the United States, or being punished by imprisonment, or disquali¬ 
fication ever to become a citizen on conviction of not obeying the 
order of removal, he cannot be discharged from the proceedings 
against him, and restored to the benefits of his former situation, al¬ 
though the highest Judicial authority should see the most sufficient 
cause for it. 

But, in the last place, it can never be admitted, that the removal 
of Aliens, authorised by the act, is to be considered, not as punish- 


30 [Senate 

merit for an offence; but as a measure of precaution and prevention. 
If the banishment of an alien from a country into which he has been 
invited, as the asylum most auspicious to his happiness; a country, 
where he may have formed the most tender connections, where he 
may have vested his entire property, and acquired property of the 
real and permanent, as well as the moveable and temporary kind; 
where he enjoys under the laws, a greater share of the blessings of 
personal security and personal liberty, than he can elsewhere hope 
for, and where he may have nearly completed his probationary title 
to citizenship; if, moreover, in the execution of the sentence against 
him, he is to be exposed, not only to the ordinary dangers of the 
sea, but to the peculiar casualties incident to a crisis of war, and 
of unusual licentiousness on that element, and possibly to vindictive 
purposes which his emigration itself may have provoked; if a ban¬ 
ishment of this sort be not a punishment, and among the severest 
of punishments, it will be difficult to imagine a doom to which the 
name can be applied. And if it be a punishment, it will remain to 
be inquired, whether it can be constitutionally inflicted, on mere 
suspicion, by the single will of the Executive Magistrate, on per¬ 
sons convicted of no personal offence against the laws of the land, 
nor involved in any offence against the law of nations, charged on 
the foreign state of which they are members. 

One argument offered in justification of this power exercised over 
Aliens, is, that the admission of them into the country being of fa¬ 
vor, not of right, the favor is at all times revocable. 

To this argument it might be answered, that allowing the truth 
of the inference, it would be no proof of what is required. A ques* 
tion would still occur, w^hether the Constitution had vested the dis¬ 
cretionary power of admitting Aliens, ia the Federal Government 
or in the State Governments. 

But it cannot be a true inference, that because the admission of 
an Alien is a favor, the favor may be revoked at pleasure. A grant 
of land to an individual, may be of favor, not of right; but the mo¬ 
ment the grant is made, the favor becomes a right, and must be 
forfeited before it can be taken away. To pardon a malefactor 
may be a favor, but the pardon is not, on that account, the less ir¬ 
revocable. To admit an Alien to naturalization, is as much a fa¬ 
vor, as to admit him to reside in the country; yet it cannot be pre- 


81 


No. 41.^] 

tended, that a person naturalized can be deprived of the benefit, 
any more than a native citizen can be disfranchised. 

Again, it is said, that Aliens not being parties to the Constitu¬ 
tion, the rights and privileges v^^hich it secures, cannot be at all 
claimed by them. 

To this reasoning also, it might be answered, that although Aliens 
are not parties to the Constitution, it does not follow that the Con¬ 
stitution has vested in Congress an absolute power over them. The 
parties to the Constitution may have granted, or retained, or mo¬ 
dified the power over Aliens, without regard to that particular 
consideration. 

But a more direct reply is, that it does not follow, because Aliens 
are not parties to the Constitution, as citizens are parties to it, that 
whilst they actually conform to it, they have no right to its protec¬ 
tion. Aliens are not more parties to the laws, than they are par¬ 
ties to the Constitution; yet, it will not be disputed, that as they 
owe on one hand, a temporary obedience, they are entitled in re¬ 
turn to their protection and advantage. 

If Aliens had no rights under the Constitution, they might not 
only be banished, but even capitally punished, without a jury or 
the Qther incidents to a fair trial. But so far has a contrary prin¬ 
ciple been carried, in every part of the United States, that except 
on charges of treason, an Alien has, besides all the common privi¬ 
leges, the special one of being tried by a jury, of which one-half 
may be also Aliens. 

It is said, further, that by the law and practice of nations. Aliens 
may be removed at discretion, for offences against the law of na¬ 
tions; that Congress are authorised to define and punish such of¬ 
fences; and that to be dangerous to the peace of society is, in 
Aliens, one of those offences. 

The distinction between Alien enemies and Alien friends, is a 
clear and conclusive answer to this argument. Alien enemies are 
under the law of nations, and liable to be punished for offences 
against it. Alien friends, except in the single case of public minis¬ 
ters, are under the municipal law, and must be tried and punished 
according to that law only. 



82 


[Senate 


This argument also, by referring the Alien act, to the power of 
Congress to define and punish offences against the law of nations, 
yields the point that the act is of a penal, not merely of a preven¬ 
tive operation. It must, in truth, be so considered. And if it be a 
penal act, the punishment it inflicts, must be justified by some of¬ 
fence that deserves it. 

Offences for which Aliens, within the jurisdiction of a country, 
are punishable, are first, offences committed by the nation of which 
they make a part, and in whose offences they are involved: Se¬ 
condly, offences committed by themselves alone, without any charge 
against the nation to which they belong. The first is the case of 
Alien enemies; the second, the case of Alien friends. In the first 
case, the offending nation can no otherwise be punished than by 
war, one of the laws which authorises the expulsion of such of its 
members, as may be found within the country, against which the 
offence has been committed. In the second case, the offence be¬ 
ing committed by the individual, not by his nation, and against the 
municipal law, not against the law of nations; the individual only, 
and not the nation, is punishable; and the punishment must be con¬ 
ducted according to the municipal law, not according to the law of 
nations. Under this view of the subject, the act of Congress, for 
the removal of Alien enemies, being conformable to the law of na¬ 
tions, is justified by the Constitution: and the “ act,’^ for the re¬ 
moval of Alien friends, being repugnant to the Constitutional prin¬ 
ciples of municipal law, is unjustifiable. 

Nor is the act of Congress, for the removal of Alien friends, 
more agreeable to the general practice of nations, than it is within 
the purview of the law of nations. The general practice of nations, 
distinguishes between Alien friends and alien enemies. The latter 
it has proceeded against, according to the law^ of nations, by ex¬ 
pelling them as enemies. The former it has considered as under a 
local and temporary allegiance, and entitled to a correspondent 
protection. If contrary instances are to be found in barbarous coun¬ 
tries, under undefined prerogatives, or amid revolutionary dangers; 
they will not be deemed fit precedents for the government of the 
United States, even, if not beyond its Constitutional authority. 

It is said, that Congress may grant letters of marque and repri¬ 
sal; that reprisals may be made on persons, as well as property; 
and that the removal of Aliens may be considered as the exercise 
in an inferior degree, of the general power of reprisal on persons. 


33 


No. 41.] 

Without entering minutely into a question that does not seem to 
require it, it may be remarked, that reprisal is a seizure of foreign 
persons or property, with a view to obtain that justice for injuries 
done by one State or its members, to another State or its mem^ 
bers; for which, a refusal of the aggressor requires such a resort 
to force under the law of nations. It must be considered as an 
abuse of words to call the removal of persons from a country, a 
seizure or reprisal on them; nor is the distinction to be overlooked 
between reprisals on persons within the country and under the 
faith of its laws, and on persons out of the country. But laying 
aside these considerations; it is evidently impossible to bring the 
Alien act within the power of granting reprisals; since it does not 
allege or imply any injury received from any particular nationj 
for which this proceeding against its members was intended as a 
reparation. The proceeding is authorized against Aliens of ever^ 
nation; of nations charged neither with any similar proceeding 
against American citizens, nor with any injuries for which justice 
might be sought, in the mode prescribed by the act. Were it 
true, therefore, that good causes existed for reprisals against one 
or more foreign nations, and that neither the persons nor property 
of its* members, under the faith of our laws, could plead an exemp¬ 
tion; the operation of the act ought to have been limited to the 
Aliens among us, belonging to such nations. To license reprisals 
against all nations, for aggressions charged on one only^ would 
be a measure as contrary to every principle of justice and public 
law, as to a wise policy and the universal practice of nations. 

It is said, that the right of removing Aliens is an incident to the 
power of war, vested in Congress by the Constitution. 

This is a former argument in a new shape only; and is answered 
by repeating, that the removal of Alien enemies is an incident to 
the power of war; that the removal of Alien friends is not an in¬ 
cident to the power of war. 

It is said, that Congress are by the Constitution to protect each 
Slate against invasion; and that the means of preventing invasion 
are included in the power of protection against it. 

The power of war in general, having been before granted by the 
Constitution; this clause must either be a mere specification for 
greater caution and certainty, of which there are other examples 

[Senate, No. 41.] 


5 


34 


[Seinate 

in the instrument; or be tfic injunction of a duty superadded to a 
grant of the power, Under either explanation, it cannot enlarge 
the powers ot Congress on the subject. The power and the duty 
to protect each State against an invading enemy, would be the 
same under the general power, if this regard to greater caution 
had been omitted. 

Invasion is an operation of war. To protect gainst invasion is 
an exercise of the power of war. A power, therefore, not inci¬ 
dent to war, cannot be incident to a particular modification of war. 
And as the removal of Alien friends has appeared to be no incident 
to a general state of war, it cannot be incident to a partial state, 
or a particular modification of war. 

Nor can it ever be granted, that a power to act on a case when 
it actually occurs, includes a power over all the means that may 
tend to prevent the occurrence of the case. Such a latitude of 
construction would render unavailing every practicable definition 
of particular and limited powers. Under the idea of preventing 
war in general, as well as invasion in particular, not only an in¬ 
discriminate removal of all aliens might be enforced, but a,thou¬ 
sand other things still more remote from the operations and pre¬ 
cautions appurtenant to war, might take place. A bigotted or ty¬ 
rannical nation might threaten us with war, unless certain religious 
or political regulations were adopted by us; yet it never could be 
inferred, if the regulations which would prevent war, were such as 
Congress had otherwise no power to make, that the power to 
make them would grow out of the purpose they were, to answer. 
Congress have power to suppress insurrections, yet it would not 
be allowed to follow, that they might employ all the means tend¬ 
ing to prevent them; of which a system of moral instruction for 
the ignorant, and of provident support for the poor, might be re¬ 
garded as among the most efficacious. 

One argument for the power of the General Government to re¬ 
move aliens, would have been passed in silence, if it had appeared 
under any authority inferior to that of a report, made during the 
last session of Congress to the House of Representatives, by a 
committee, and approved by the House. The doctrine on which 
this argument is founded, is of so new and so extraordinary a cha¬ 
racter, and strikes so radically at the political system of America, 
that it is proper to state it in the very words of the report. 


No, 41.] 


35 


The act [concerning aliens.) is said to be unconstitutional, be- 
** cause to remove aliens is a direct breach of the Constitution, which 

provides, by the 9th section of the 1st article, that the migration 
** or importation of such persons as any of the States shall think 
‘^proper to admit, shall not be prohibited by the Congress, prior to 
** the year 1808. 

Among the answers given to this objection to the constitution^ 
ality of the act, the following very remarkable onfe is extracted. 

“ Thirdly, That as the Constitution has given to the States^ no 
“power to remove aliens, during the period of the limitation under 
“consideration, in the mean time, on the construction assumed, 
“there would be no authority in the country empowered to send 
“away dangerous aliens, which cannot be admitted.” 

The reasoning here used would not, in any view, be conclusive; 
because there are powers exercised by most other governments, 
which in the United States are withheld by the people, both from 
the General Government and from the State Governments. Of 
this sort are many of the powers prohibited by the declarations of 
right prefixed to the Constitutions, or by the clauses in the Consti¬ 
tutions, in the nature of such declarations. Nay, so far is the po¬ 
litical system of the United States distinguishable from that of 
other countries, by the caution with which powers are delegated 
and defined; that in one very important case, even of commercial 
regulation and revenue, the power is absolutely locked up against 
the hands of both Governments. A tax on exports can be laid by 
no constitutional authority whatever. Under a system thus pecu¬ 
liarly guarded, there could surely be no absurdity in supposing, 
that alien friends, who if guilty of treasonable machinations may 
be punished, or if suspected on probable grounds, may be secured 
by pledges or imprisonment, in like manner with permanent citi¬ 
zens, were never meant to be subjected to banishment by any ar¬ 
bitrary and unusual process, either under the one Government or 
the other. 

But it is not the inconclusiveness of the general reasoning in 
this passage, which chiefly calls the attention to it. It is the 
principle assumed by it, that the powers held by the States, are 
given to them by the Constitution of the United States; and the 
inference from this principle, that the powers supposed to be ne- 


3f> [Senate 

cessary which are not so given to the State Governments, must re¬ 
side in the Government of the United States. 

The respect which is felt for every portion of the constituted 
authorities, forbids some of the reflections which this singular pa¬ 
ragraph might excite, and they are the more readily suppressed, 
as it may presumed, with justice perhaps, as well as candor, that 
inadvertence may have had its share in the error. It would be an 
unjustifiable delicacy, nevertheless, to pass by so portentous a 
claim, proceeding from so high an authority, without a monitory 
notice of the fatal tendencies with which it would be pregnant. 

Lastly, it is said, that a law on the same subject with the Alien 
act, passed by this State originally in 1785, and re-enacted in 1792, 
is a proof that a summary removal of suspected aliens, was not 
heretofore regarded by the Virginia Legislature, as liable to the 
objections now urged against such a measure. 

This charge against Virginia vanishes before the simple remark, 
that the law of Virginia relates to “ suspicious persons being the 
“subjects of any foreign power or state, who shall have made a 
“ declaration of war, or actually commenced hostilities, or from 
“whom the President shall apprehend hostile designsf whereas 
the act of Congress relates to Aliens, being the subjects of foreign 
powers and states, who have neither declared war, nor commenced 
hostilities, nor from whom hostile designs are apj^rehended, 

II. It is next affirmed of the Alien act, that it unites Legislative, 
Judicial, and Executive powers in the hands of the President. 

However difficult it may be to mark, in every case, with clear¬ 
ness and certainty, the line which divides legislative power, from 
the other departments of power; all will agree, that the powers 
referred to these departments may be so general and undefined, as 
to be of a Legislative, not of an Executive or Judicial nature; and 
may for that reason be unconstitutional. Details, to a certain de¬ 
gree, are essential to the nature and character of a law; and on 
criminal subjects, it is proper that details should leave as little as 
possible to the discretion of those who are to apply and to execute 
the law. If nothing more were required, in exercising a Legisla¬ 
tive trust, than a general conveyance of authority, without laying 
down any precise rules, by which the authority conveyed should 
be carried into effect; it would follow that the whole power of le- 


37 


No. 41.] 

gislation might be transferred by the Legislature from itself, and 
proclamations might become substitutes for laws. A delegation of 
power in this latitude, would not be denied to be a union of the 
different powers. 

To determine, then, whether the appropriate powers of the dis¬ 
tinct departments are united by the act authorizing the Executive 
to remove Aliens, it must be inquired whether it contains such de¬ 
tails, definitions and rules, as appertain to the true character of a 
law; especially a law by which personal liberty is invaded, pro¬ 
perty deprived of its value to the owner, and life itself indirectly 
exposed to danger. 

The Alien Act declares “ that it shall be lawful for the Presi¬ 
dent to order all such aliens as he shall judge dangerous to the 
peace and safety of the United States, or shall have reasonable 
ground to suspect^ are concerned in any treasonable or secret ma¬ 
chinations, against the government thereof, to depart,” &c. 

Could a power be well given in terms less definite, less particu¬ 
lar, and less precise 1 To be dangerous to the public safety ; to be 
suspected of secret machinations against the government: these can 
never be mistaken for legal rules or certain definitions. They leave 
every thing to the President. His will is the law. 

But, it is not a legislative power only that is given to the Presi¬ 
dent. He is to stand in the place of the Judiciary also. His suspi¬ 
cion is the only evidence which is to convict: his order, the only 
judgment which is to be executed. 

Thus, it is, the President whose will is to designate the offensive 
conduct; it is his will that is to ascertain the individuals on whom 
it is charged; and it is his will, that is to cause the sentence to be 
executed. It is rightly affirmed, therefore, that the act unites Le¬ 
gislative and Judicial powers to those of the Executive. 

III. It is affirmed, that this union of power subverts the general 
principles of free government. 

It has become an axiom in the science of government, that a se¬ 
paration of the Legislative, Executive, and Judicial departments, is 
necessary to the preservation of public liberty. No where has this 


38 [Senate 

axiom been better understood in theory, or more carefully pursued 
in practice, than in the United States. 

IV. It is affirmed that such a union of powers subverts the par¬ 
ticular organization and positive provisions of the Federal Consti¬ 
tution. 

According to the particular organization of the Constitution, its 
Legislative powers are vested in the Congress, its Executive pow¬ 
ers in the President, and its Judicial powers in a supreme and infe¬ 
rior tribunals. The union of any two of these powers, and still 
more of all three, in any one of these departments, as has been 
shewn to be done by the Alien Act, must consequently subvert the 
constitutional organization of them. 

That positive provisions, in the Constitution, securing to indivi¬ 
duals the benefits of fair trial, are also violated by the union of 
powers in the Alien Act, necessarily results from the two facts, 
that the act relates to alien friends, and that Alien friends being 
under the municipal law only, are entitled to its protection. 

The second object against which the resolution protests, is the 
Sedition Act. 

Of this act it is affirmed, 1. That it exercises in like manner a 
power not delegated by the Constitution. 2. That the power, on 
the contrary, is expressly and positively forbidden by one of the 
amendments to the Constitution. 3. That this is a power, which 
more than any other ought to produce universal alarm; because it 
is levelled against that right of freely examining public characters 
and measures, and of free communication thereon, which has ever 
been justly deemed the only effectual guardian of every other 
right. 

1. That it exercises a power not delegated by the Constitution. 

Here again, it will be proper to recollect, that the Federal Go¬ 
vernment being composed of powers specifically granted with a re¬ 
servation of all others to the States or to the people, the . positive 
authority under which the Sedition Act could be passed must be 
produced by those who assert its constitutionality. In what part 
of the Constitution, then, is this authority to be found 1 


No. 41.] 


30 


Several attempts have been made to ans-wer this question, which 
will be examined in their order. The committee will begin with 
one, which has filled them with equal astonishment and apprehen¬ 
sion; and which, they cannot but persuade themselves, must have 
the same effect on all, who will consider it with coolness and im¬ 
partiality, and with a reverence for our Constitution, in the true 
character in which it issued from the sovereign authority of the 
people. The committee refer to the doctrine lately advanced as 
a sanction to the Sedition Act; “that the common or unwritten 
law,” a law of vast extent and complexity, and embracing almost 
every possible subject of legislation, both civil and criminal, makes 
a part of the law of these States, in their united and national ca¬ 
pacity. 

The novelty, and in the judgment of the committee, the extra¬ 
vagance of this pretension, would have consigned it to the silence^ 
in which they have passed by other arguments, which an extraor¬ 
dinary zeal for the act has drawn into the discussion: But the auspi¬ 
ces under which this innovation presents itself, have constrained 
the committee to bestow on it an attention, which other considera¬ 
tions might have forbidden. 

In executing the task, it may be of use to look back to the colo¬ 
nial state of this country, prior to the revolution; to trace the ef¬ 
fect of the revolution which converted the colonies into indepen¬ 
dent States; to inquire into the import of the articles of confedera¬ 
tion, the first instrument by which the union of the States was re¬ 
gularly established; and finally, to consult the Constitution of 1788^ 
which is the oracle that must decide the important question. 

In the state prior to the revolution, it is certain that the com¬ 
mon law under different limitations, made a part of the colonial 
codes. But whether* it be understood that the original colonists 
brought the law with them, or made it their law by adoption; it is 
equally certain, that it was the separate law of each colony with¬ 
in its respective limits, and was unknown to them, as a law perva¬ 
ding and operating through the whole as one society. 

It could not possibly be otherwise. The common law was not 
the same in any two of the colonies; in some, the modifications 
were materially and extensively different. There was no com¬ 
mon Legislature, by which a common will could be expressed in 


40 


[Sbnatj; 

the form of a law; nor any common magistracy, by which such a 
law could be carried into practice. The will of each colony, alone 
and^separately, had its organs for these purposes. 

This stage of our political history, furnishes no foothold for the 
patrons of this new doctrine. 

Did then the principle or operation of the great event which 
made the colonies independent States, imply or introduce the com¬ 
mon law, as a law of the Union'? 

The fundamental principle of the revolution was, that the colo¬ 
nies were co-ordinate members with each other, and with Great 
Britain; of an empire, united by a common Executive sovereign, 
but not united by any common Legislative sovereign The Legisla¬ 
tive power was maintained to be as complete in each American 
Parliament, as in the British Parliament. And the royal preroga¬ 
tive was in force in each colony, by virtue of ics acknowledging 
the King for its Executive magistrate, as it was in Great Britain, 
by virtue of a like acknowledgment there. A denial of these prin¬ 
ciples by Great Britain, and the assertion of them by America, 
produced the revolution. 

There was a time indeed, when an exception to the I^egislative 
separation of the several component and co-equal parts of the em¬ 
pire, obtained a degree of acquiescence. The British Parliament 
was allowed to regulate the trade with foreign nations, and be¬ 
tween the different parts of the empire. This was, however, mere 
practice without right, and contrary to the true theory of the Con¬ 
stitution. The conveniency of some regulations, in both those ca¬ 
ses, was apparent; and as there was no Legislature with power 
over the whole, nor any constitutional pre-eminence among the 
Legislatures of the several parts, it was natural for the Legislature 
of that particular part which was the eldest and the largest, to as¬ 
sume this function, and for the others to acquiesce in it. This ta¬ 
cit arrangement was the less criticised, as the regulations esta¬ 
blished by the British Parliament operated in favor of that part of 
the empire which seemed to bear the principal share of the public 
burdens, and were regarded as an indemnification of its advances 
for the other parts. As long as this regulating power was confined 
to the two objects of conveniency and equity, it was not complained 
of, nor much inquired into. But, no sooner was it perverted to the 


41 


N o. 41.] 

selfish views of the party assuming it, than the injured parties be*^ 
gan to feel and to reflect; and the moment the claim to a direct 
and indefinite power was ingrafted on the precedent of the regula¬ 
ting power, the whole charm was dissolved, and every eye opened 
to the usurpation. The assertion by G. B. of a power to make laws 
for the other members of the empire in all cases whatsoever, ended 
in the discovery, that she had a right to make laws for them in no 
cases whatsoever. 

Such being the ground of our revolution, no support nor color can 
be drawn from it, for the doctrine that the common law is binding 
on these States as one society. The doctrine, on the contrary, is 
evidently repugnant to the fundamental principle of the revolution. 

The articles of confederation are the next source of information 
on this subject. 

In the interval between the commencement of the revolution and 
the final ratification of these articles, the nature and extent of the 
Union was determined by the circumstances of the crisis, rather 
than by any accurate delineation of the general authority. It will 
not be alleged, that the common law” could have had any legiti¬ 
mate birth as a law of the United States during that state of things. 
If it came as such into existence at all, the charter of confederation 
must have been its parent. 

Here again, however, its pretensions are absolutely destitute of 
foundation. This instrument does not contain a sentence or syl¬ 
lable that can be tortured into a countenance of the idea, that the 
parties to it were, with respect to the objects of the common law, 
to form one community. No such law is named or implied, or al¬ 
luded to, as being in force, or as brought into force by that com¬ 
pact. No provision is made by which such a law could be carried 
into operation; whilst, on the other hand, every such inference or 
pretext is absolutely precluded by article 2d, which declares “ that 
each State retains its sovereignty, freedom and independence, and 
every power, jurisdiction and right, which is not by this confede¬ 
ration expressly delegated to the United States, in Congress as¬ 
sembled.” 

Thus far it appears, that not a vestige of this extraordinary doc¬ 
trine can be found in the origin or progress of American institu- 

[Senate, No. 41.] 6 


42 


[Senate 


lions. The evidence against it has, on the contrary, grown strong¬ 
er at every step, till it has amounted to a formal and positive ex¬ 
clusion, by written articles of compact among the parties con¬ 
cerned. 

Is this exclusion revoked, and the common law introduced as a 
national law, by the present Constitution of the United States T 
This is the final question to be examined. 

It is readily admitted, that particular parts of the common law 
may have a sanction from the Constitution, so far as they are ne¬ 
cessarily comprehended in the technichal phrases which express 
the powers delegated to the government; and so far also, as such 
other parts may be adopted by Congress as necessary and proper 
for carrying into execution the powers expressly delegated. But, 
the question does not relate to either of these portions of the com¬ 
mon law. It relates to the common law beyond these limitations. 

The only part of the Constitution which seems to have been re¬ 
lied on m this case, is the 2d sect, of art. III. “ The Judicial pow¬ 
er shall extend to all cases, in law and equity^ arising under this 
Constitution, the laws of the United States, and Treaties made, or 
which shall be made under their authority.”' 

It has been asked what cases, distinct from those arising under 
the laws and treaties of the United States, can arise under the Con¬ 
stitution, other than those arising under the common law; and it 
is inferred, that the common law is accordingly adopted or recog¬ 
nized by the Constitution. 

Never, perhaps, was so broad a construction applied to a text so 
clearly unsusceptible of it. If any color for the inference could be 
found, it must be in the impossibility of finding any other cases in 
law and equity, within the provision of the Constitution, to satisfy 
the expression; and rather than resort to a construction affecting 
so essentially the whole character of the government, it would 
perhaps be more rational to consider the expression as a mere ple¬ 
onasm or inadvertence. But, it is not necessary to decide on such 
a dilemma. The expression is fully satisfied, and its accuracy jus¬ 
tified, by two descriptions of cases, to which the Judicial authority 
is extended, and neither of which implies that the common law is 
the law of the United States. One of these descriptions compre- 


43 


No. 41.] 

hends the cases growing out of the restrictions on the Legislative 
power of the States. For example, it is provided that “ no State 
shall emit bills of credit,"” or make any thing but gold and silver 
coin a tender in payment of debts.” Should this prohibition be 
violated, and a suit between citizens of the same State be the conse¬ 
quence, this would be a case arising under the Constitution before 
the Judicial power of the United States. A second description 
comprehends suits between citizens and foreigners, or citizens of 
different States, to be decided according to the State or foreign 
laws; but submitted by the Constitution to the Judicial power of 
the United States; the Judicial power being, in several instances, 
extended beyond the Legislative power of the United States. 

To this explanation of the text, the following observations may 
be added: 

The expression, cases in law and equity,” is manifestly confi¬ 
ned to cases of a civil nature; and would exclude cases of crimi¬ 
nal jurisdiction. Criminal cases in law and equity would be a lan¬ 
guage unknown to the law^ 

The succeeding paragraph of the same section is in harmony 
with this construction. It is in these words: “In all cases affect¬ 
ing Ambassadors, other public Ministers, and Consuls, and those in 
which a State shall be a party, the Supreme Court shall have ori¬ 
ginal jurisdiction. In all the other cases [including cases in law 
and equity arising under the Constitution] the Supreme Court shall 
have appellate jurisdiction both as to law and/ac^; with such ex¬ 
ceptions, and under such regulations, as Congress shall make.” 

This paragraph, by expressly giving an appellate jurisdiction, in 
eases of law and equity arising under the Constitution, to face, as 
well as to law, clearly excludes criminal cases, where the trial by 
jury is secured; because the fact, in such cases, is noi a subject of 
appeal. And, although the appeal is liable to such exceptions and 
regulations as Congress may adopt, yet it is not to be supposed 
that an exception of all criminal cases could be contemplated; as 
well because a discretion in Congress to make or omit the excep¬ 
tion would be improper, as because it would have been unnecessary. 
The exception could as easily have been made by the Constitution 
itself, as referred to the Congress. 


44 


[Senate 


Once more; the amendment last added to the Constitution, de¬ 
serves attention, as throwing light on this subject. The Judicial 
power of the United States shall not be construed to extend to any 
suit in law or equity, commenced or prosecuted against one of the 
United States, by citizens of another State, or by citizens or sub¬ 
jects of any foreign power.’^ As it will not be pretended that any 
criminal proceeding could take place against a State; the terms 
law or equity, must be understood as appropriate to civil, in exclu¬ 
sion of criminal cases. 

From these considerations, it is evident, that this part of the 
Constitution, even if it could be applied at all, to the purpose for 
which it has been cited, would not include any cases whatever of 
a criminal nature; and consequently, would not authorise the in¬ 
ference from it, that the Judicial authority extends to offences 
against the common law, as offences arising under the Constitution. 

It is further to be considered, that even if this part of the Con¬ 
stitution could be strained into an application to every common law 
case, criminal as well as civil, it could have no effect in justifying 
the Sedition Act: which is an exercise of Legislative, and not of 
Judicial power: and it is the Judicial power only, of which the ex¬ 
tent is defined in this part of the Constitution. 

There are two passages in the Constitution, in which a descrip¬ 
tion of the law of the United States, is found. The first is con¬ 
tained in art. iii. sec. 2, in the words following: ‘‘This Constitu¬ 
tion, the laws of the United States, and treaties made, or which 
shall be made under their authority.” The second is contained in 
the 2d paragraph of art. vi. as follows: “This Constitution and 
the laws of the United States, which shall be made in pursuance 
thereof, and all treaties made, or which shall be made, under the 
authority of the United States, shall be the supreme law of the 
land.” The first of these descriptions was meant as a guide to 
the Judges of the United States; the second as a guide to the Judges 
in the several States. Both of them consist of an enumeration, 
which was evidently meant to be precise and complete. If the 
common law had been understood to be a law of the United States, 
it is not possible to assign a satisfactory reason why it was not ex¬ 
pressed in the enumeration. 

In aid of these objections, the difficulties and confusion insepa¬ 
rable fiom a constructive introduction of the common law, would 
afford powerful reasons against it. 


45 


No. 41.] 

Is it to be" the common law with, or without the British statutes'? 

If without the statutory amendments, the vices of thb code 
would be insupportable ! 

If with these amendments, what period is to be fixed for limit¬ 
ing the British authority over our laws'? 

Is it to be the date of the eldest or the youngest of the Colo¬ 
nies '? 

Or are the dates to be thrown together, and a medium deduced! 

Or is our independence to be taken for the date ! 

Is, again, regard to be had to the various changes in the com¬ 
mon law made by the local codes of America ? 

Is regard to be had to such changes, subsequent, as well as pri¬ 
or, to the establishment of the Constitution! 

Is regard to be had to future, as well as past changes T 

Is the law to be different in every State, as differently modified 
by its code; or are the modifications of any particular State, to be 
applied to alH 

And on the latter supposition, which among the State codes 
would form’the standard 1 

Questions of this sort might be multiplied with as much ease, as 
there would be difficulty in answering them. 

The consequences flowing from the proposed construction, fur- 
nish other objections equally conclusive; unless the text were pe¬ 
remptory in its meaning, and consistent with other parts of the in¬ 
strument. 

These consequences may be in relation to the Legislative author 
rity of the United States; to the Executive authority; to the JudL 
cial authority; and to the Governments of the several States. 

If it be understood, that the common law is established by the 
Constitution, it follows that no part of the law can be altered by 
the Legislature; such of the statutes, already passed, as may be 
repugnant thereto, would be nullified; particularly the “Sedition 
Act” itself, which boasts of being a melioration of the common 
law; and the whole code, with all its incongruities, barbarisms, 
and bloody maxims, would be inviolably saddled on the good peo¬ 
ple of the United States. 


46 


[Senate 


Should this consequence be rejected, and the common law be 
held, like other laws, liable to revision and alteration, by the au¬ 
thority of Congress; it then follows, that the authority of Congress 
is co-extensive with the objects of common law; that is to say, 
with every object of Legislation: For, to every such object, does 
some branch or other of the common law extend. The authority 
of Congress would, therefore, be no longer under the limitations, 
marked out in the Constitution. They would be authorised to le¬ 
gislate in all cases whatsoever. 

In the next place, as the President possesses the executive pow¬ 
ers of the Constitution, and is to see that the laws be faithfully 
executed, his authority also must be co-extensive with every branch 
of the common law. The additions which this would make to his 
power, though not readily to be estimated, claim the most serious 
attention. 

This is not all; it will merit the most profound consideration, 
how far an indefinite admission of the common law, with a latitude 
in construing it, equal to the construction by which it is deduced 
from the Constitution, might draw after it the various prerogatives 
making part of the unwritten law of England. The English Con¬ 
stitution itself is nothing more than a composition of unwritten 
laws and maxims. 

In the third place, whether the common law be admitted as of 
legal or of Constitutional obligation, it would confer on the Judicial 
department a discretion little short of a Legislative power. 

On the supposition of its having a constitutional obligation, this 
power in the Judges would be permanent and irremediable by the 
Legislature. On the other supposition, the power would not ex¬ 
pire until the Legislature should have introduced a full system of 
statutory provisions. Let it be observed, too, that besides all the 
uncertainties above enumerated, and which present an immense 
field for judicial discretion, it would remain with the same depart¬ 
ment to decide what parts of the common law would, and what 
would not, be properly applicable to the circumstances of the UnL 
ted States. 

A discretion of this sort has always been lamented as incongru¬ 
ous and dangerous, even in the Colonial and State courts; although 
so much narrowed by positive provisions in the local codes on all 


No. 41.] 


47 


the principal subjects embraced by the common law. Under the 
United States, where so few laws exist on those subjects, and 
where so great a lapse of time must happen before the vast chasm 
could be supplied, it is manifest that the power of the Judges 
over the law, would, in fact, erect them into Legislators; and, that 
for a long time, it would be impossible for the citizens to conjec¬ 
ture, either what was, or would be law. 

In the last place, the consequence of admitting the common law 
as the law of the United States, on the authority of the individual 
States, is as obvious as it would be fatal. As this law relates to 
every subject of Legislation, and would be paramount to the Con¬ 
stitutions and laws of the States; the admission of it would over¬ 
whelm the residuary sovereignty of the States, and by one con¬ 
structive operation, new-model the whole political fabric of the 
country. 

From the review thus taken of the situation of the American co¬ 
lonies prior to their Independence; of the effect of this event on 
their situation; of the the nature and import of the articles of con¬ 
federation; of the true meaning of the passage in the existing Con¬ 
stitution from which the common law has been deduced; of the 
difficulties and uncertainties incident to the doctrince; and of its 
vast consequences in extending the powers of the Federal Govern- 
ment, and in superseding the authorities of the State Governments; 
the committee feel the utmost confidence in concluding, that the 
common law never was, nor by any fair construction, ever can be, 
deemed a law for the American people as one community; and 
they indulge the strongest expectation that the same conclusion 
will finally be drawn, by all candid and accurate inquirers into the 
subject. It is indeed distressing to reflect, that it ever should have 
been made a question, whether the Constitution, on the whole face 
of which is seen so much labor to enumerate and define the seve¬ 
ral objects of Federal power, could intend to introduce in the lump, 
in an indirect manner, and by a forced construction of a few phra¬ 
ses, the vast and multifarious jurisdiction involved in the common 
law; a law filling so many ample volumes; a law overspreading 
the entire field of Legislation; and a law that would sap the foun- 
dation of the Const! tuion as a system of limited and specified powers. 
A severer reproach could not, in the opinion of the committee, be 
thrown on the Constitution, on those who framed, or on those who 
established it, than such a supposition would throw on them. 


48 


[Senate 


The argument, then^ drawn from the common law, on the ground 
of its being adopted or recognised by the Constitution, being inap¬ 
plicable to the Sedition Act, the committee will proceed to exa¬ 
mine the other arguments which have been founded on the Consti¬ 
tution. 

They will waste but little time on the attempt to cover the act by 
the preamble to the Constitution; it being contrary to every ac¬ 
knowledged rule of construction, to set up this part of an instru¬ 
ment, in opposition to the plain meaning, expressed in the body of 
the instrument. A preamble usually contains the general motives 
or reasons, for the particular regulations or measures which follow 
it; and is always understood to be explained and limited by them. 
In the present instance, a contrary interpretation would have the 
inadmissible effect, of rendering nugatory or improper, every part 
of the Constitution which succeeds the preamble. 

The paragraph in Art. 1, Sec. 8, which contains the power to 
lay and collect taxes, duties, imposts and excises; to pay the debts, 
and provide for the common defence and general welfare, having 
been already examined, will also require no particular attention in 
this place. It will have been seen that in its fair and consistent 
meaning, it cannot enlarge the enumerated powers vested in Con¬ 
gress. 

The part of the Constitution which seems most to be recurred 
to, in defence of the “ Sedition Act,” is the last clause of the above 
section, empowering Congress ‘‘ to make all laws which shall be. 
necessary and proper for carrying into execution the foregoing 
powers, and all other powers vested by this Constitution in the Go¬ 
vernment of the United States, or in any department or officer 
thereof.” 

The plain import of this clause is, that Congress shall have all 
the incidental or instrumental powers necessary and proper for car¬ 
rying into execution all the express powers; whether they be vest¬ 
ed in the Government of the United States, more collectively, or in 
the several departments, or officers thereof. It is not a grant of 
new powers to Congress, but merely a declaration for the removal 
of all uncertainty, that the means of carrying into execution, those 
otherwise granted, are included in the grant. 


Whenever, therefore, a question arises concerning the cottsfiti> 
tionality of a particular poAver, the first question is, whether the 
power be expressed in the Constitution. If it be, the question is 
decided. If it be not expressed, the next inquiry must be, whether 
it is properly an incident to an express power, and necessary to its 
execution. If it be, it may exercised by Congress. If it be not, 
Congress cannot exercise it. 


Let the question be asked, then, whether the power over the 
press exercised in the Sedition Act,” be found among the pow¬ 
ers expressly vested in the Congress'? This is not pretended. 

Is there any express power, for executing which it is a necessa* 
ry and proper power '? 




The power which has been selected, as least remote, in answer ^ " 
to this question, is that of “ suppressing insurrections;” which is 
said to imply a power to prevent insurrections, by punishing what* ^ 
ever may lend or tend to them. But, it surely cannot, with the ^ 
least plausibility, be said, that a regulation of the press, and a pun* 
ishment of libels, are exercises of a power to suppress insurrections. 

The most that could be said, would be, that the punishment of li* 
bels, if it had the tendency ascribed to it, might prevent the occa* 
sion of passing or executing laws necessary and proper for the sup* 
pression of insurrections. 


Has the Federal Government no power, then, to prevent as well 
as to punish resistance of the laws '? 


They have the power, which the Constitution deemed most pro* 
per, in their hands for the purpose. The Congress has power, be* 
fore it happens, to pass laws for punishing it; and the Executive 
and Judiciary have power to enforce those laws when it does hap* 
pen. 

It must be recollected by many, and could be shown to the satis* 
faction of all, that the construction here put on the terms ‘-neces* 
sary and proper,” is precisely the construction which prevailed du¬ 
ring the discussions and ratifications of the Constitution. It may 
be added, and cannot too often be repeated, that it is a construc¬ 
tion absolutely necessary to maintain their consistency with the 
peculiar character of the government, as possessed of particular 
and defined powers, only; not of the general and indefinite powers 

[Senate, No. 41.] 7 


5a 


[Senatf: 



vested in ordinary governments. For, if the power to suppress 
insurrections includes a power io punish libels ; or if by the power 
to punish^ includes a power io prevent, by all the means that may 
have that tendency; such is the relation and influence among the most 
remote subjects of legislations, that a power over a very few, would 
carry with it a power over all. And it must be wholly immateri¬ 
al, whether unlimited powers be exercised under the name of un¬ 
limited powers, or be exercised under the name of unlimited means 
of carrying into execution, limited powers. 

This branch of the subject will be closed with a reflection which 
must have weight with all; but more especially with those who 
place peculiar reliance on the judicial exposition of the Constitution, 
as the bulwark provided against undue extensions of the legislative 
power. ,If it be understood that the powers implied in the specified 
^powers, have an immediate and appropriate relation to them, as 
means, necessary and proper for carrying them into execution, 
questions on the constitutionality of laws passed for this purpose, 
will be of a nature sufficiently precise and determinate for judicial 
cognizance and control 1 If, on the other hand, Congress are not li¬ 
mited in the choice of means by any such appropriate relation of 
them to be specified powers; but may employ all such means as 
they may deem fitted io prevent, as well as io punish, crimes subject¬ 
ed to their authority: such as may have a tendency only to promote 
an object for which they are authorised to provide; every one must 
perceive, that questions relating to means of this sort, must be 
questions of mere policy and expediency; on which, legislative dis¬ 
cretion alone can decide, and from which the judicial interposition 
and control are completely excluded. 


2. The next point which the resolution requires to be proved, is, 
that the power over the press exercised by the Sedition Act, is 
positively forbidden by one of the amendments to the Constitution. 

The amendment stands in these words—“Congress shall make 
no law respecting an establishment of religion, or prohibiting the 
free exercise thereof, or abridging the freedom of speech or of the 
press; or the right of the people peaceably to assemble, and to pe¬ 
tition the government for a redress of grievances.” 

In the attempts to vindicate the “ Sedition Act,” it has been 
contended, 1. That the “freedom of the press” is to be determined 
by the meaning of these terms in the common law. 2. That the 


51 


No. 41.] 

article supposes the power over the press to be in Congress, and 
prohibits them only from abridging the freedom allow^ed to it by 
the common law. * 

Although it will be shewn, in examining the second of these po¬ 
sitions, that the amendment is a denial to Congress of all power 
over the press, it may not be useless to make the following obser¬ 
vations on the first of them. 

It is deemed to be a sound opinion, that the Sedition Act, in its 
definition of some of the crimes created, is an abridgment of the 
freedom of publication, recognized by principles of the common 
law in England. 

The freedom of the press under the common law, is, in the de¬ 
fences of the Sedition Act, made to consist in an exemption from 
all previous restraint on printed publications, by persons author¬ 
ized to inspect and prohibit them. It appears to the committee, 
that this idea of the freedom of the press, can never be admitted 
to be the American idea of it; since a law inflicting penalties on 
printed publications would have a similar effect with a law author¬ 
izing a previous restraint on them. It would seem a mockery to 
say, that no law should be passed, preventing publications from 
being made, but that laws might be passed for punishing them in 
case they should be made. 

The essential difference between the British Government and 
and the American Constitutions, will place this subject in the clear¬ 
est light. 

In the British Government, the danger of encroachments on the 
rights of the people, is understood to be confined to the Executive 
Magistrate. The representatives of the people in the Legislature, 
are not only exempt themselves from distrust, but are considered 
as sufficient guardians of the rights of their constituents against 
the danger from the Executive. Hence it is a principle, that the 
Parliament is unlimited in its power; or, in their own language, is 
omnipotent. Hence too, all the ramparts for protecting the rights 
of the people, such as their Magna Charta, their Bill of Rights, 
&c. are not reared against the Parliament, but against the royal 
prerogative. They are mere Legislative precautions against Exe¬ 
cutive usurpations. Under such a Government as this, an exemp¬ 
tion of the press from previous restraint by licensers appointed by 
the King, is all the freedom that can be secured to it. 


52 


[Senatjk 


In the United States, the case is altogether different. The 
People, not the Government, possess the absolute sovereignty- 
The Legislature, no less than the Executive, is under limitations 
of po^ver. Encroachments are regarded as possible from the one^ 
as well as from the other. Hence in the United States, the great 
and essential rights of the People are secured against Legislative^ 
as well as against Executive ambition. They are secured, not by 
laws paramount to prerogative; but by Constitutions paramount to 
laws. This security of the freedom of the press requires, that it 
should be exempt^ not only from previous restraint by the Execu¬ 
tive, as in Great Britain; but from Legislative restraint also; and 
this exemption, to be effectual, must be an exemption, not only 
from the previous inspection of licensers, but from the subsequent 
penalty of laws. 

The state of the press, therefore, under the common law, cannot 
in this point of view, be the standard of its freedom in the United 
States. 

But there is another view, under which it may be necessary to 
consider this subject. It may be alleged, that although the securi- 
rity for the freedom of the press be different in Great Britain and 
in this country; being a legal security only in the former, and a 
constitutional security in the latter; and although there may be a 
further difference, in an extension of the freedom of the press, here, 
beyond an exemption from previous restraint, to -an exemption 
from subsequent penalties also; yet that the actual legal freedom 
of the press, under the common law, must determine the degree of 
freedom, which is meant by the terms, and which is constitutional¬ 
ly secured against both previous and subsequent restraints. 

The committee are not unaware of the difficulty of all general 
questions, which may turn on the proper boundary between the 
liberty and licentiousness of the press. They will leave it there¬ 
fore for consideration only, how far the difference between the na¬ 
ture of the British Government, and the nature of the American 
Goyernments, and the practice under the latter, may shew the de¬ 
gree of rigor in the former, to be inapplicable to, and not obliga¬ 
tory in the latter. 

The nature of Governments elective, limited and responsible, in 
all their branches, may well be supposed to require a greater 
freedom of animadversion, than might be tolerated by the genius 


53 


No. 41.] 

of such a Government as that of Great Britain. In the latter it in 
a maxim, that the King, an hereditary, not a responsible magis¬ 
trate, can do no wrong; and that the Legislature, which in two- 
thirds of its composition, is also hereditary, not responsible, can do 
what it pleases. In the United States, the Executive magistrates 
are not held to be infallible, nor the Legislatures to be omnipo¬ 
tent; and both being elective, are both responsible. Is it not natu¬ 
ral and necessary, under such different circumstances, that a diffe¬ 
rent degree of freedom, in the use of the press, should be contem¬ 
plated I 

Is not such an inference favored by what is observable in Great 
Britain itself I Notwithstanding the general doctrine of the common 
law, on the subject of the press, and the occasional punishment of 
those who use it with a freedom offensive to the Government; it is 
well known, that with respect to the responsible members of the 
Government, where the reasons operating here, become applicable 
there, the freedom exercised by the press, and protected by the 
public opinion, far exceeds the limits prescribed by the ordinary 
rules of law. The ministry, who are responsible to impeachment, 
are at all times animadverted on by the press, with peculiar free¬ 
dom; and during the elections for the House of Commons, the 
other responsible part of the Government, the press is employed 
with as little reserve towards the candidates. 

The practice in America must be entitled to much more respect. 
In every State, probably, in the Union, the press has exerted a 
freedom in canvassing the merits and measures of public men, of 
every description, which has not been confined to the strict limits 
of the common law. On this footing, the freedom of the press has 
stood; on this footing it yet stands. And it will not be a breach, 
either of truth or of candor, to say, that no persons or presses are in 
the habit of more unrestrained animadversion^ on the proceedings 
and functionaries of the State Governments, than the persons and 
presses most zealous in vindicating the act of Congress for pun¬ 
ishing similar animadversions on the Government of the United 
States. 

The last remark will not be understood as claiming for the State 
Governments an immunity greater than they have heretofore en¬ 
joyed. Some degree of abuse is inseparable from the proper use 
of every thing; and in no instance is this more true, than in that 


54 


[Sknate 


of the press. It has accordingly been decided by the practice of 
the States, that it is better to leave a few of its noxious branches 
to their luxuriant growth, than by pruning them away, to injure 
the vigor of those yielding the proper fruits. And can the wisdom 
of this policy be doubted by any who reflect, that to the press 
alone, chequered as it is with abuses, the world is indebted for all 
the triumphs which have been gained by reason and humanity, 
over error and oppression; who reflect, that to the same beneficent 
source the United States owe much of the lights which conducted 
them to the rank of a free and independent nation; and which have 
improved their political system into a shape so auspicious to their 
happiness. Had ‘‘ Sedition Acts,” forbidding every publication 
that might bring the constituted agents into contempt or disrepute, 
or that might excite the hatred of the people against the authors 
of unjust or pernicious measures, been uniformly enforced against 
the press; might not the United States have been languishing at 
this day, under the infirmities of a sickly confederation? Might 
they not possibly be miserable colonies, groaning under a foreign 
yoke ? 

To these observations one fact will be added, which demon¬ 
strates that the common law cannot be admitted as the universal 
expositor of American terms, which may be the same with those 
contained in that law. The freedom of conscience and of religion, 
are found in the same instruments which assert the freedom of the 
press. It will never be admitted that the meaning of the former 
in the common law of England, is to limit their meaning in the 
United States. 

Whatever weight may be allowed to these considerations, the 
committee do not, however, by any means intend to rest the ques¬ 
tion on them. They contend that the article of amendment, in¬ 
stead of supposing Jn Congress a power that might be exercised 
over the press, provided its freedom was not abridged, was meant 
as a positive denial to Congress, of any power whatever on the 
subject. 

To demonstrate that this was not the true object of the article, 
it will be sufficient to recal the circumstances which led to it, and 
to refer to the explanation accompanying the article. 

When the Constitution was under the discussions which preced¬ 
ed its ratification, it is well known that great apprehensions were 


No. 41.] 


55 


expressed by many, lest the omission of some positive exception 
from the powers delegated of certain rights, and of the freedom of 
the press particularly, might expose them to the danger of being 
drawn by construction within some of the powers vested in Con¬ 
gress; more especially of the power to make all laws necessary 
and proper for carrying their other powers into execution. In re¬ 
ply to this objection, it was invariably urged to be a fundamental 
and characteristic principle of the Constitution, that all powers not 
given by it, were reserved; that no powers were given beyond 
those enumerated in the Constitution, and such as were fairly in¬ 
cident to them; that the power over the rights in question, and 
particularly over the press, was neither among the enumerated 
powers, nor incident to any of them; and consequently that an 
exercise of any such power would be a manifest usurpation. It is 
painful to remark how much the arguments now employed in be¬ 
half of the Sedition Act, are at variance with the reasoning which 
then justified the Constitution, and invited its ratification. 

From this posture of the subject, resulted the interesting ques¬ 
tion in so many of the Conventions, whether the doubts and dan¬ 
gers ascribed to the Constitution, should be removed by any 
amendments previous to the ratification, or be postponed, in confi¬ 
dence that as far as they might be proper, they would be introdu¬ 
ced in the form provided by the Constitution. The latter course 
was adopted; and in njost of the States, the ratifications were fol¬ 
lowed by propositions and instructions for rendering the Constitu¬ 
tion more explicit, and more safe to the rights, not meant to be de¬ 
legated by it. Among those rights, the freedom of the press, in 
most instances, is particularly and emphatically mentioned. The 
firm and very pointed manner, in which it is asserted in the pro¬ 
ceedings of the Convention of this State, will be hereafter seen. 

In pursuance of the wishes thus expressed, the first Congress 
that assembled under the Constitution, proposed certain amend¬ 
ments, which have since, by the necessary ratifications, been made 
a part of it; among which amendments, is the article containing^ 
among other prohibitions on the Congress, an express declaration 
that they should make no law abridging the freedom of the press. 

Without tracing farther the evidence on this subject, it would 
seem scarcely possible to doubt, that no power whatever over the 
press, was supposed to be delegated by the Constitution, as it ori¬ 
ginally stood; and that the amendment was intended as a positive 
and absolute reservation of it. 


56 


[Sej^ate 

But the evidence is still stronger. The proposition of amend 
ments made by Congress, is introduced in the following terms. 

The Conventions of a number of the States having at the time of 
their adopting the Constitution^ expressed a desire, in order to pre¬ 
vent misconstructions or abuse of its powers, that further declarato 
ry and restrictive clauses should be added; and as extending the 
ground of public confidence in the Government, will best ensure the 
beneficent ends of its institutions 

Here is the most satisfactory and authentic proof, that the seve¬ 
ral amendments proposed, were to be considered as either declara¬ 
tory or restrictive; and whether the one or the other, as corre¬ 
sponding with the desire expressed by a number of the States, and 
as extending the ground of public confidence in the Government. 

Under any other construction of the amendment relating to the 
press, than that it declared the press to be wholly exempt from the 
power of Congress, the amendment could neither be said to cor¬ 
respond with the desire expressed by a number of the States, nor 
be calculated to extend the ground of public confidence in the Go¬ 
vernment. 

Nay more; the construction employed to justify the Sedition 
Act,” would exhibit a phenomenon, without a parallel in the poli¬ 
tical world. It would exhibit a number of respectable States, as 
denying first that any power over the press was delegated by the 
Constitution; as proposing next, that an amendment to it, should 
explicitly declare that no such power was delegated; and finally, 
as concurring in an amendment actually recognizing or delegating 
such a power. 

Is then the Federal Government, it will be asked, destitute of 
every authority for restraining the licentiousness of the press, and 
for shielding itself against the libellous attacks which may be made 
on those who administer it 1 

The Constitution alone can answer this question. If no such 
power be expressly delegated, and it be not both necessary and 
proper to carry into execution an express power; above all, if it 
be expressly forbidden by a declaratory amendment to the Consti¬ 
tution, the answer must be, that the Federal Government is desti¬ 
tute of all such authority. 




No. 41.] 5Y 

And might it not be asked in turn, whether it is not more proba¬ 
ble, under all the circumstances which have been reviewed, that 
the authority should be withheld by the Constitution, than that it 
should be left to a vague and violent construction; whilst so much 
pains were bestowed in enumerating other powers, and so many 
less important powers are included in the enumeration ? 

Might it not be likewise asked, whether the anxious circumspec¬ 
tion which dictated so peculiar limitations on the general au¬ 
thority, would be unlikely to exempt the press altogether from that 
authority 1 The peculiar magnitude of some of the powers neces¬ 
sarily committed to the Federal Government; the peculiar dura¬ 
tion required for the functions of some of its departments; the pe¬ 
culiar distance of the seat of its proceedings from the great body 
of its constituents; and the peculiar difficulty of circulating an 
adequate knowledge of them through any other channel; will not 
these considerations, some or other of which produced other ex¬ 
ceptions from the powers of ordinary Governments, all together, 
account for the policy of binding the hand of the Federal Govern¬ 
ment, from touching the channel which alone can give efficacy to 
its responsibility to its constituents; and of leaving those who ad¬ 
minister it, to a remedy for their injured reputations, under the 
same laws, and in the same tribunals, which protect their lives, 
their liberties, and their properties'? 

But the question does not turn either on the wisdom of the Con¬ 
stitution, or on the policy which gave rise to its particular organi¬ 
zation. It turns on the actual meaning of the instrument; by 
which it has appeared, that a power over the press is clearly ex¬ 
cluded, from the number of powers delegated to the Federal Go¬ 
vernment. 

3. And in the opinion of the Committee, well may it be said, as 
the resolution concludes with saying, that the unconstitutional 
power exercised over the press by the Sedition Act,” ought 
“more than any other, to produce universal alarm; because it is 
“ levelled against that right of freely examining public characters 
“and measures, and of free communication among the people there- 
“on, which has ever been justly deemed the only effectual guar- 
“ dian of every other right.” 

[Senate, No. 41.] 


8 


f 


58 [Senate 

Without scrutinizing minutely into all the provisions of the 
“ Sedition Act,” it will be sufficient to cite so much of section 2, 
as follows: And be it further enacted, that if any person shall 

“ write, print, utter or publish, or shall cause or procure to be 
written, printed, uttered or published, or shall knowingly and 
“ willingly assist or aid in writing, printing, uttering or publishing 
any false, scandalous and malicious writing or writings against 
“the Government of the United States, or either House of the 
“Congress of the United States, or the President of the United 
“ States, with an intent to defame the said Government, or either 
“ House of the said Congress, or- the President, or to bring them, or 
either of them, into contempt or disrepute; or to excite against 
“ them, or either, or any of them, the hatred of the good people of 
the United States, 8^c. Then such person being thereof convicted 
“ before any Court of the United States, having jurisdiction thereof, 
“ shall be punished by a fine not exceeding two thousand doilars, and 
“ by imprisonment not exceeding two yearsf* 

On this part of the act, the following observations present them¬ 
selves: 

1. The Constitution supposes that the President, the Congress, 
and each of its Houses, may not discharge their trusts, either from 
defect of judgment, or other causes. Hence, they are all made 
responsible to their constituents, at the returning periods of elec¬ 
tion; and the President, who is singly entrusted with very great 
powers, is, as a further guard, subjected to an intermediate im¬ 
peachment. 

2. Should it happen, as the Constitution supposes it may happen, 
that either of these branches of the Government may not have 
duly discharged its trust; it is natural and proper, that according 
to the cause and degree of their faults, they should be brought into 
contempt or disrepute, and incur the hatred of the people. 

3. Whether it has, in any case, happened that the proceedings 
of either, or all of those branches, evinces such a violation of duty 
as to justify a contempt, a disrepute or hatred among the people, 
can only be determined by a free examination thereof, and a free 
communication among the people thereon. 

4. Whenever it may have actually happened, that proceedings 
of this sort are chargeable on all or either of the branches of the 


9 


No. 41.] 59 

Government, it is the duty as well as right of intelligent and faith¬ 
ful citizens, to discuss and promulge them freely, as well to con¬ 
trol them by the censorship of the public opinion, as to promote a 
remedy according to the rules of the Constitution. And it cannot 
be avoided, that those who are to apply the remedy must feel, in 
some degree, a contempt or hatred against the transgressing party. 

5. As the act was passed on July 14, 1798, and is to be in force 
until March 3, 1801, it was of course, that during its continuance, 
two elections of the entire House of Representatives, an election 
of a part of the Senate, and an election of a President, were to 
take place. 

6. That consequently, during all these elections, intended by the 
Constitution to preserve the purity, or to purge the faults of the 
administration, the great remedial rights of the people were to be 
exercised, and the responsibility of their public agents to be skreen- 
ed, under the penalties of this act. 

May it not be asked of every intelligent friend to the liberties 
of his country, whether the power exercised in such an act as this, 
ought not to produce great and universal alarm'? Whether a rigid 
execution of such an act, in time past, would not have repressed 
that information and communication among the people, which is 
indispensable to the just exercise of their electoral rights ? And 
whether such an act, if made perpetual, and enforced with rigor, 
would not, in time to come, either destroy our free system of Go¬ 
vernment, or prepare a convulsion that might prove equally fatal 
to it ? 

In answer to such questions, it has been pleaded that the wri¬ 
tings and publications forbidden by the act, are those only which 
are false and malicious, and intended to defame; and merit is 
claimed for the privilege allowed to authors to justify, by proving 
the truth of their publications, and for the limitations to which the 
sentence of fine and imprisonment is subjected. 

To those who concurred in the act, under the extraordinary be¬ 
lief, that the option lay between the passing of such an act, and 
leaving in force the common law of libels, which punishes truth 
equally with falsehood; and submits the fine and imprisonment to 
the indefinite discretion of the court, the merit of good intentions 
ought surely not to be refused. A like merit may perhaps be due 


60 


[Senate 

for the discontinuance of the corporeal punuhment which the com¬ 
mon law also leaves to the discretion of the court. This merit of in¬ 
tention, however, would have been greater, if the several mitigations 
had not been limited to so short a period; and the apparent incon¬ 
sistency would have been avoided, between justifying the act at 
one time, by contrasting it with the rigors of the common law, oth¬ 
erwise in force; and at another time by appealing to the nature of 
the crisis, as requiring the temporary rigor exerted by the act. 

But, whatever may have been the meritorious intentions of all 
or any who contributed to the Sedition Act; a very few reflections 
will prove, that its baneful tendency is little diminished by the pri¬ 
vilege of giving in evidence the truth of the matter contained in po¬ 
litical writings. 

In the first place, where simple and naked facts alone are in 
question, there is sufficient difficulty in some cases, and sufficient 
trouble and vexation in all, of meeting a prosecution from the go¬ 
vernment, with the full and formal proof, necessary in a Court of 
law. 

• But, in the next place, it must be obvious to the plainest minds, 
that opinions, and inferences, and conjectural observations, are not 
only in many cases inseparable from the facts, but may often be 
more the objects of the prosecution than the facts themselves; or 
may even be altogether abstracted from particular facts; and that 
opinions and inferences, and conjectural observations, cannot be 
subjects of that kind of proof which appertains to facts, before a 
Court of law. 

Again: It is no less obvious, that the intent to defame or bring 
into contempt or disrepute or hatred, which is made a condition of 
the offence created by the act, cannot prevent its pernicious influ¬ 
ence, on the freedom of the press. For, omitting the inquiry, how 
far the malice of the intent is an inference of the law from the mere 
publication; it is manifestly impossible to punish the intent to bring 
those who administer the government into disrepute or contempt, 
without striking at the right of freely discussing public characters 
and measures: because those who engage in such discussions, must 
expect and intend to excite these unfavorable sentiments, so far as 
they may be thought to be deserved. To prohibit, therefore, the 
intent to excite those unfavorable sentiments against those who ad- 


61 


No. 41.] 

minister the government, is equivalent to a prohibition of the aC" 
tual excitement of them; and to prohibit the actual excitement of 
them, is equivalent to a prohibition of discussions having that ten> 
dency and effect; which, again, is equivalent to a protection of 
those who administer the government, if they should at any time 
deserve the contempt or hatred of the people, against being expo¬ 
sed to it, by free animadversions on their characters and conduct. 
Nor can there be a doubt, if those in public trust be shielded by pe¬ 
nal laws from such strictures of the press, as may expose them to 
contempt or disrepute, or hatred, where they may deserve it, that 
in exact proportion as they may deserve to be exposed, will be 
the certainty and criminality of the intent to expose them and the 
vigilance of prosecuting and punishing it; nor a doubt, that a go¬ 
vernment thus intrenched in penal statutes, against the just and 
natural effects of a culpable administration, will easily evade the 
responsibility, which is essential to a faithful discharge of its duty. 

Let it be recollected, lastly, that the right of electing the mem¬ 
bers of the government, constitutes more particularly the essence 
of a free and responsible government. The value and efficacy of 
this right, depends on the knowledge of the comparative merits and 
demerits of the candidates for public trust; and on the equal free¬ 
dom, consequently, of examining and discussing these merits and 
demerits of the candidates respectively. It has been seen, that a 
number of important elections will take place whilst the act is in 
force; although it should not be continued beyond the term to 
which it is limited. Should there happen, then, as is extremely 
probable in relation to some or other of the branches of the go¬ 
vernment, to be competitions between those who are, and those 
who are not, members of the government; what will be the situa¬ 
tions of the competitors? Not equal; because the characters of the 
former will be covered by the Sedition Act” from animadversions 
exposing them to disrepute among the people; whilst the latter 
may be exposed to the contempt and hatred of the people, without 
a violation of the act. What will be the situation of the people ? 
Not free; because they will be compelled to make their election be¬ 
tween competitors, whose pretensions they are not permitted by 
the act, equally to examine, to discuss, and to ascertain. And from 
both these situations, will not those in power derive an undue ad¬ 
vantage for continuing themselves in it; which by impairing 
the right of election, endangers the blessings of the government 
founded on it? 


62 


[Senate 


It is with justice, therefore, that the General Assembly have af¬ 
firmed in the resolution, as well that the right of freely examining 
public characters and measures, and of free communication there¬ 
on, is the only effectual guardian of every other right; as that this 
particular right is levelled at, by the power exercised in the “ Se¬ 
dition Act.” 

The resolution next in order is as follows: 

That this State having hy its Convention, which ratified the Fede^ 
ral Constitution, expressly declared, that among other essential rights, 
*^the liberty of conscience and of the press cannot he cancelled, 
abridged, restrained or modified by any authority of the United 
States,and from its extreme anxiety to guard these rights from eve¬ 
ry possible attack of sophistry and ambition, having with other States, 
recommended an amendment for that purpose, which amendment was, 
in due time, annexed to the Constitution ; it would mark a reproach¬ 
ful inconsistency, and criminal degeneracy, if an indifference were 
now shewn, to the most palpable violation of one of the rights thus de¬ 
clared and secured; and to the establishment of a precedent, which 
may be fatal to the other. 

To place this resolution in its just light, it will be necessary to 
recur to the act of ratification by Virginia, which stands in the en¬ 
suing form: 

We, the delegates of the people of Virginia, duly elected in pursu¬ 
ance of a recommendation from the General Assembly, and now met 
in Convention, having fully and freely investigated and discussed the 
proceedings of the Federal Convention, and being prepared as well as 
the most mature deliberation hath enabled us, to decide thereon ; DO, 
in the name and in behalf of the people of Virginia, declare and make 
known, that the powers granted under the Constitution, being deri¬ 
ved from the people of the United States, may be resumed by them, 
whensoever the same shall be perverted to their injury or oppression, 
and that every power not granted thereby, remains with them, and at 
their will. That therefore, no right of any denomination can be can¬ 
celled, abridged, restrained or modified, by the Congress, by the Se¬ 
nate or House of Representatives acting in any capacity, by the Pre¬ 
sident, or any department or officer of the United Stntes, except in 
those instances in which power is given by the Constitution for those 
purposes ,* and, that among other essential rights, the liberty of con- 


No. 41.] 


63 


science and of the pressy cannot be cancelledy abridged^ restrained or 
modified by any authority of the United States. 

Here is an express and solemn declaration by the Convention of 
the State, that they ratified the Constitution in the sense, that no 
right of any denomination can be cancelled, abridged, restrained or 
modified by the government of the United States or any part of 
it; except in those instances in which power is given by the Con¬ 
stitution; and in the sense particularly, “ that among other essen¬ 
tial rights, the liberty of conscience and freedom of the press can¬ 
not be cancelled, abridged, restrained or modified by any authority 
of the United States.” 

Words could not well express, in a fuller or more forcible man¬ 
ner, the understanding of the Convention, that the liberty of con¬ 
science and the freedom of the press, were eqaully and completely 
exempted from all authority whatever of the United States. 

Under an anxiety to guard more effectually these rights against 
every possible danger, the Convention, after ratifying the Consti¬ 
tution, proceeded to prefix to certain amendments proposed by 
them, a declaration of rights, in which are two articles providing, 
the one for the liberty of conscience, the other for the freedom of 
speech and of the press. 

Similar recommendations having proceeded from a number of 
other States; and Congress, as has been seen, having in conse¬ 
quence thereof, and with a view to extend the ground of public con¬ 
fidence, proposed, among other declaratory and restrictive clauses, 
a clause expressly securing the liberty of conscience and of the 
press; and Virginia having concurred in the ratifications which 
made them a part of the Constitution; it will remain with a candid 
public to decide, whether it would not mark an inconsistency 
and degeneracy, if an indifference were now shewn to a palpable 
violation of one of those rights, the freedom of the press; and to a ^ 
precedent therein, which may be fatal to the other, the free exer¬ 
cise of religion. 

That the precedent established by the violation of the former of 
these rights, may, as is affirmed by the resolution, be fatal to the 
latter, appears to be demonstrable, by a comparison of the grounds 
on which they respectively rest; and from the scope of reasoning 
by which the power over the former has been vindicated. 


64 


[Senate: 

First. Both of these rights, the liberty of conscience and of the 
press, rest equally on the original ground of not being delegated 
by the Constitution, and consequently withheld from the govern¬ 
ment. Any construction, therefore, that would attack this origi¬ 
nal security for the one, must have the like effect' on the other. 

Secondly. They are both equally secured by the supplement to 
the Constitution; being both included in the same amendment, 
made at the same time, and by the same authority. Any construc¬ 
tion or argument, then, which would turn the amendment into a 
grant or acknowledgment of power with respect to the press, might 
be equally applied to the freedom of religion. 

Thirdly. If it be admitted that the extent of the freedom of the 
press, secured by the amendment, is to be measured by the com¬ 
mon law on this subject, the same authority may be resorted to, 
for the standard which is to fix the extent of the “ free exercise of 
religion.” It cannot be necessary to say what this standard would 
be; whether the common law be tak,en solely as the unwritten, or 
as varied by the written law of England. 

Fourthly. If the Words and phrases in the amendment, are to be 
considered as chosen with a studied discrimination, which yields 
an argument for a power over the press, under the limitation that 
its freedom be not abridged: the same argument results from the 
same consideration, for a power over the exercise of religion, un¬ 
der the limitation that its freedom be not prohibited. 

For, if Congress may regulate the freedom of the press provi¬ 
ded they do not abridge it, because it is said only, “ they shall not 
abridge it,” and is not said, “ they shall make no law respecting 
it:” the analogy of reasoning is conclusive, that Congress may re¬ 
gulate and even abridge the free exercise of religion; provided 
they do not prohibit it;” because it is said only “ they shall not 
prohibit it;” and is not said, “ they shall make no law respecting, 
or no law abridging it.” 

The General Assembly were governed by the clearest reason, 
then, in considering the “Sedition Act,” which legislates on the 
freedom of the press, as establishing a precedent that may be fatal 
to the liberty of conscience; and it will be the duty of all, in pro¬ 
portion as they value the security of the latter, to take the alarm 
at every encroachment on the former. 


65 


No. 41.] 

The two concluding resolutions only remain to be examined. 
They are in the words following: 

That the good people of this Commonwealth, having ever felt 
and continuing to feel, the most sincere affection for their brethren 
of other States; the truest anxiety for establishing and perpetuating 
the union of all; and the most scrupulous fidelity to that Constitu¬ 
tion which is the pledge of mutual friendship, and the instrument of 
mutual happiness; the General Assembly doth solemnly appeal to the 
like dispositions in the other States, in confidence that they will con¬ 
cur with this CommonweaWi in declaring, as it does hereby declare, 
that the acts aforesaid are unconstitutional; and, that the necessary 
and proper measures will be taken by each, for co-operating with this 
State in maintaining unimpaired, the authorities, rights, and liber¬ 
ties reserved in the States respectively, or to the people '^ 

That the Governor be desired to transmit a copy of the foregoing 
resolutions to the Executive authority of each of the other States, 
with a request that the same may be communicated to the Legisla¬ 
ture thereof; and that a copy be furnished to each of the Senators 
and Representatives, representing this State in the Congress of the 
United States. 

The fairness and regularity of the course of proceeding, here 
pursued, have not protected it against objections even from sources 
too respectable to be disregarded. 

It has been said, that it belongs to the Judiciary of the United 
States, and not the State Legislatures, to declare the meaning of 
the Federal Constitution. 

But a declaration, that proceedings of the Federal Government 
are not warranted by the Constitution, is a novelty neither among 
the citizens; nor among the Legislatures of the States; nor are 
the citizens or the Legislature of Virginia, singular in the example 
of it. 

Nor can the declarations of either, whether affirming or deny¬ 
ing the Constitutionality of measures of the Federal Government; 
or whether made before or after judicial decisions thereon, be 
deemed in any point of view, an assumption of the office of the 
judge. The declarations, in such cases, are expressions of opinion, 
unaccompanied with any other effect than what they may produce 

[Senate, No. 41.] 9 


66 [Senate 

on opinion, by exciting reliection. The expositions of the judicia¬ 
ry, on the other hand, are carried into immediate effect by force. 
The former may lead to a change in the legislative expression of 
the general will; possibly to a change in the opinion of the judi¬ 
ciary; the latter enforces the general will, whilst that will and that 
opinion continue unchanged. 

And if there be no impropriety in declaring the unconstitutiona¬ 
lity of proceedings in the Federal Government, where can be the 
impropriety of communicating the declaration to other States, and 
inviting their concurrence in a like declaration ? What is allowa- 
able for one must be allowable for all; and a free communication 
among the States, where the Constitution imposes no restraint, is 
as allowable among the State Governments as among other public 
bodies or private citizens. This consideration derives a weight,, 
that cannot be denied to it, from the relation of the State Legisla¬ 
tures to the Federal Legislature, as the immediate constituents of 
one of its branches. 

The Legislatures of the States have a right also to originate 
amendments to the Constitution, by a concurrence of two-thirds 
of the whole number, in applications to Congress for the purpose.. 
When new States are to be formed by a junction of two or more 
States or parts of States, the Legislatures of the States concerned 
are, as well as Congress, to concur in the measure. The States 
have a right also to enter into agreements or compacts, with the 
consent of Congress. In ail such cases a communication among 
them results from the object which is common to them. 

It is lastly to be seen, whether the^ confidence expressed by the 
resolution, that the necessary and proper measures would be taken 
by the other States for co-operating with Virginia in maintaining 
the rights reserved to the States, or to the people, be in any de¬ 
gree liable to the objections which have been raised against it. 

If it be liable to objection, it must be because either the object 
or the means are objectionable. 

The object being to maintain what the Constitution has ordained, 
is in itself a laudable object. 

The means are expressed in the terms, “the necessary and pro¬ 
per measures.” A proper object was to be pursued, by means 
both necessary and proper. 


67 


No. 41.] 

To find an objection, then, it must be shown that some meaning 
was annexed to these general terms, which was not proper; and, 
for this purpose, either that the means used by the General Assem¬ 
bly were an example of improper means, or that there were no 
proper means to which the terms cogld refer. 

In the example given by the State, of declaring the Alien and 
Sedition Acts to be unconstitutional, and of communicating the 
declaration to the other States, no trace of improper means has 
appeared. And if the other States had concurred in making a like 
declaration, supported too by the numerous applications flowing 
Immediately from the people, it can scarcely be doubted, that these 
simple means would have been as sufficient, as they are unexcep¬ 
tionable. 

It is no less certain that other means might have been employed, 
which are strictly within the limits of the Constitution. The Le¬ 
gislatures of the States might have made a direct representation 
to Congress, with a view to obtain a rescinding of the two offen¬ 
sive acts; or, they might have represented to their respective Se¬ 
nators in Congress, their wish, that two-thirds thereof would pro¬ 
pose an explanatory amendment to the Constitution; or two-thirds 
of themselves, if such had been their option, might, by an applica¬ 
tion to Congress, have obtained a Convention for the same object. 

These several means, though not equally eligible in themselves, 
nor probably, to the States, were all constitutionally open for con¬ 
sideration. And if the General Assembly, after declaring the two 
acts to be unconstitutional, the first and most obvious proceeding 
on the subject, did not undertake to point out to the other States, 
a choice among the farther measures that might become necessary 
and proper, the reserve will not be misconstrued by liberal minds 
into any culpable imputation. 

These observations appear to form a satisfactory reply to every 
objection which is not founded on a misconception of the terms 
employed in the resolutions. There is one other, however, which 
may be of too much importance not to be added. It cannot be 
forgotten, that among the arguments addressed to those who ap¬ 
prehended danger to liberty from the establishment of the General 
Government over so great a country, the appeal was emphatically 
made to the intermediate existence of the State Governments, be¬ 
tween the people and that Government, to the vigilance with which 
they would descry the first symptoms of usurpation, and to the 


68 [SENATJEi 

promptitude With which they would sound the alarm to the public^ 
This argument was probably not without its effect; and if it was 
a proper one then, to recommend the establishment of the Consti^ 
tution, it must be a proper one now, to assist in its interpretation. 

The only part of the two concluding resolutions that remains to 
be noticed, is the repetition in the first, of that warm affection to 
the Union and its members, and of that scrupulous fidelity to the 
Constitution, which have been invariably felt by the people of this 
Slate, As the proceedings were introduced with these sentiments, 
they could not be more properly closed than in the same manner. 
Should there be any so far misled as to call in question the since¬ 
rity of these professions, whatever regret may be excited by the 
error, the General Assembly cannot descend into a discussion of it. 
Those, who have listened to the suggestion, can only be left to 
their own recollection of the part which this State has borne in 
the establishment of our National Independence, in the establish¬ 
ment of our National Constitution, and in maintaining under it the 
authority and laws of the Union, without a single exception of in¬ 
ternal resistance or commotion. By recurring to these facts, they 
will be able to convince themselves, that the representatives of the 
people of Virginia, must be above the necessity of opposing any 
other shield to attacks on their national patriotism, than their own 
consciousness, and the justice of an enlightened public; who will 
perceive in the resolutions themselves, the strongest evidence of 
attachment both to the Constitution and to the Union, since it is 
only by maintaining the different governments and departments 
Within their respective limits, that the blessings of either can be 
perpetuated. 

The extensive view of the subject thus taken by the committee, 
has led them to report to the House, as the result of the whole, 
the following resolution: 

Resolved, That the General Assembly, having carefully and re¬ 
spectfully attended to the proceedings of a number of the States, 
in answer to their resolutions of December 21, 1798, and having 
accurately and fully re-examined and re-considered the latter, find 
it to be their indispensable duty to adhere to the same, as founded 
in truth, as consonant with the Constitution, and as conducive to 
its preservation; and more especially to be their duty to renew, as 
they do hereby renew, their protest against the Alien and Sedi¬ 
tion Acts,” as palpable and alarming infractions of the Constitution. 


MR. MADISON’S LETl’ER. 

To the Editor of the North American Review. 


Montpelier^ August^ 1830 . 

Bear Sir, 

I have duly received your letter, in which you refer to the 

nullifying doctrine,” advocated as a constitutional right, by some 
of our distinguished fellow-citizens; and to the proceedings of the 
Virginia Legislature in ’ 98 , ’ 99 , as appealed to in behalf of that 
doctrine; and you express a wish for my ideas on those subjects. 

I am aware of the delicacy of the task in some respects, and the 
difficulty in every respect, of doing full justice to it. But having, 
in more than one instance, complied with a like request from other 
friendly quarters, I do not decline a sketch of the views which I 
have been led to take of the doctrine in question, as well of some 
others connected with them; and of the grounds from which it ap¬ 
pears, that the proceedings of Virginia have been misconceived by 
those who have appealed to them. In order to understand the 
true character of the Constitution of the United States, the error, 
not uncommon, must be avoided, of viewing it through the medium, 
either of a consolidated government, or of a confederated govern¬ 
ment, whilst it is neither the one nor the other; but a mixture of 
both. And having, in no model, the similitudes and analogies ap¬ 
plicable to other systems of government, it must, more than any 
other, be its own interpreter, according to its text and the facts of 
the case. 

From these it will be seen that the characteristic peculiarities 
of the Constitution are: 1. The mode of its formation. 2. The 
division of the supreme powers of government between the States 
in their united capacity, and the States in their individual capa¬ 
cities. 

1. It was formed, not by the governments of the component 
States, as the federal government for which it was substituted was 
formed. Nor was it formed by a majority of the people of the 
United States, as a single community in the manner of a consoli¬ 
dated government. 


70 


[Senate 


It was formed by the States, that is, by the people in each of the 
States, acting in their highest sovereign capacity; and formed con¬ 
sequently by the same authority which formed the State Constitu¬ 
tions. 

Being thus derived from the same source as the Constitutions of 
the States, it has, within each State, the same authority as the 
Constitution of the State; and is as much a Constitution, in the 
strict sense of the term, within its prescribed sphere, as the Con¬ 
stitutions of the States are, within their respective spheres; but 
with this obvious and essential difference, that being a compact 
among the States in their highest sovereign capacity, and consti¬ 
tuting the people thereof one people for certain purposes, it can¬ 
not be altered or annulled at the will of the States individually, as 
the Constitution of a State may be at its individual will. 

2. And that it divides the supreme powers of government, be¬ 
tween the government of the United States and the governments 
of the individual States, is stamped on the face of the instrument: 
the powers of war and of taxation, of commerce and of treaties, 
and other enumerated powers vested in the government of the 
United States, being of as high and sovereign a character, as any 
of the powers reserved to the State governments. 

Nor is the government of the United States created by the Con. 
stitution, less a government in the strict sense of the term, within 
the sphere of its powers, than the governments created by the 
Constitutions of the States are, within their several spheres. It 
is, like them, organized into legislative, executive and judiciary 
departments. It operates, like them, directly on persons and 
things. And, like them it has at command a physical force for ex¬ 
ecuting the powers committed to it. The concurrent operation 
in certain cases, is one of the features marking the peculiarity of 
the system. 

Between these different constitutional governments, the one ope¬ 
rating in all the States, the others operating separately in each, 
with the aggregate powers of government divided between them, 
it could not escape attention, that controversies would arise con¬ 
cerning the boundaries of jurisdiction; and that some provision 
ought to be made for such occurrences. A political system that 
does not provide for a peaceable and authoritative termination of 
occurring controversies, would not be more than the shadow of a 


71 


No. 41.] 

government, the object and end of a real government being the 
substitution of law and order for uncertainty, confusion and vio-^ 
lence. 

That to have left a final decision, in such cases, to each of the 
States, then thirteen, and already twenty-four, could not fail to make 
the Constitution and laws of the United States different in different 
States, was obvious, and not less obvious, that this diversity of in¬ 
dependent decisions, must altogether distract the government of 
the Union, and speedily put an end to the Union itself. A uniform 
authority of the laws, is in itself a vital principle. Some of the 
most important laws could not be partially executed. They must 
be executed in all the States, or they could be duly executed in 
none. An impost, of an excise for example, if not in force in some 
States, would be defeated in others. It is well known that this 
was among the lessons of experience, which had a primary influ¬ 
ence in bringing about the existing Constitution. A loss of its ge¬ 
neral authority would moreover revive the exasperating questions 
between the States holding ports for foreign commerce, and the 
adjoining States without them; to which are now added all the in¬ 
land States, necessarily carrying on their foreign commerce through 
other States. 

To have made the decisions under the authority of the individual 
States, co-ordinate, in all cases, with decisions under the authority 
ot the United States, would unavoidably produce collisions incom¬ 
patible with the peace of society, and with that regular and effi¬ 
cient administration which is of the essence of free governments. 
Scenes could not be avoided, in which a ministerial officer of the 
United States, and the correspondent officer of an individual State,, 
would have recontres in executing conflicting decrees; the result 
of which would depend on the comparative force of the local pos¬ 
ses attending them; and that a casualty depending on the political 
opinions and party feelings in different States, 

To have referred every clashing decision, under the two autho¬ 
rities, for a final decision, to the States as parties to the Constitu¬ 
tion, would be attended with delays, with inconveniences, and 
with expenses, amounting to a prohibition of the expedient; not to 
mention its tendency to impair the salutary veneration for a sys¬ 
tem requiring such frequent interpositions, nor the delicate ques- 


72 [Senate 

tioiis which might present themselves as to the form of stating the 
appeal) and as to the quorum for deciding it. 

To have trusted to negotiation for adjusting disputes between 
the government of the United States and the State governments, 
as between independent and separate sovereignties, would have 
lost sight altogether of a Constitution and government for the 
Union, and opened a direct road from a failure of that resort, to 
the ultimate ratio between nations wholly independent of and 
alien to each other. If the idea had its origin the process of ad¬ 
justment between separate branches of the same government, the 
analogy entirely fails. In the case of disputes between indepen¬ 
dent parts of the same government, neither party being able to 
consummate its will, nor the government to proceed without a 
concurrence of the parts, necessity brings about an accommoda¬ 
tion. In disputes between a State government, and the govern¬ 
ment ol the United States, the case is practically as well as theo¬ 
retically different; each party possessing all the departments of an 
organized government, legislative, executive and judiciary; and 
having each a physical force to support its pretensions. Although 
the issue of negotiation might sometimes avoid this extremity, how 
often would it happen among so many States, that an unaccommo¬ 
dating spirit in some would render that resource unavailing. A 
contrary supposition would not accord with a knowledge of human 
nature, or the evidence of our own political history. 

The Constitution, not relying on any of the preceding modifica¬ 
tions, for its safe and successful operation, has expressly declared 
on the one hand, 1. ‘‘ That the Constitution, and the laws made in 
pursuance thereof, and all treaties made under the authority of the 
United States, shall be the supreme law of the land: 2. That the 
judges of every State &hall be bound thereby, any thing in the Con¬ 
stitution and laws of any State to the contrary notwithstanding 
3. That the judicial power of the United States shall extend to all 
cases in law and equity arising under the Constitution, the laws of 
the United States, and treaties made under their authority,” &c. 

On the other hand, as a security of the rights and powers of the 
States, in their individual capacities, against an undue preponder 
ranee of the powers granted to the government over them in their 
united capacity, the Constitution has relied on, 1. The responsibi¬ 
lity of the Senators and Representatives in the Legislature of the 


73 


No. 4i.] 

United States to the Legislatures and people of the States: 2. The 
responsibility of the President to the people of the United States: 
and, 3. The liability of the executive and judicial functionaries of 
the United States to impeachment by the representatives of the 
people of the States, in one branch of the Legislature of the United 
States, and trial by the representatives of the States, in the other 
branch: the State functionaries, legislative, executive and judicial, 
being, at the same time, in their appointment and responsibility, 
altogether independent of the agency or authority of the United 
States, 

How^ far thft structure of the government of the United States 
is adequate and safe for its objects, time alone can absolutely de¬ 
termine. Experience seems to have shewn, that whatever may 
grow out of future stages of our national career, there is, as yet, 
a sufficient control in the popular will, over the executive and le¬ 
gislative departments of the government. When the Alien and 
Sedition laws were passed in contravention to the opinions and 
feelings of the community, the first elections that ensued put an 
end to them. And whatever may have been the character of other 
acts, in the judgment of many of us, it is but true, that they have 
generally accorded with the views of a majority of the States, and 
of the people. At the present day it seems well understood, that 
the laws which have created most dissatisfaction, have had a like 
sanction without doors; and that whether continued, varied or re¬ 
pealed, a like proof will be given of the sympathy and responsibili¬ 
ty of the representative body to the constituent body. Indeed the 
great complaint now is against the results of this sympathy and re¬ 
sponsibility in the legislative policy of the nation. 

With respect to the judicial power of the United States, and the 
authority of the Supreme Court in relation to the boundary of ju¬ 
risdiction between the federal and the State governments, I may 
be permitted to refer to the thirty-ninth number of the “ Federal¬ 
ist,’’* for the light in which the subject was regarded by its writer, 
at the period when the Constitution was depending; and it is be- 


*No . 33. It is true, that in controrersies relating to the boundary between the two juris¬ 
dictions, the tribunal which is ultimately to decide, is to be established under the general go¬ 
vernment. But this does not change the principle of the case. The decision is to be impar¬ 
tially made, according to the rules of the Constitution; aiid all the usual and most effectual pre¬ 
cautions are taken to secure this impartiality. Some such tribunal is clearly essential to pre¬ 
vent an appeal to the sword, and a dissolution of the compact; and that it ought to be estab¬ 
lished under the genera!, rather than under the local goyernmeiits; or, to speak more properly, 
that it could be safel}’^ established under the first alone, is a position not likely to be com¬ 
batted. 

[Senate, No. 41.] 


10 



74 


[Senate 


lieved that the same was the prevailing view then taken of it, that 
thy same view has continued to prevail, and that it does so at this 
time, notwithstanding the eminent exceptions to it. 

But it is perfectly consistent with the concession of this power 
to the Supreme Court, in cases falling within the course of its func¬ 
tions, to maintain that the power has not always been rightly ex¬ 
ercised. To say nothing of the period, happily a short one, when 
judges in their seats did not abstain from intemperate and party 
harangues, equally at variance with their dignity, there have been 
occasional decisions from the bench, which have incurred serious 
and extensive disapprobation. Still it would seem,^hat, with but 
few exceptions, the course of the judiciary has been hitherto sus¬ 
tained by the predominant sense of the nation. 

Those who have denied or doubted the supremacy of the judicial 
power of the United States, and denounce at the same time nulli¬ 
fying power in a State, seem not to have sufficiently adverted to 
the utter inefficiency of a supremacy in a law of the land, without 
a supremacy in the exposition and execution of the law; nor to 
the destruction of all equipoise between the Federal government 
and the State governments, if, whilst the functionaries of the 
Federal government are directly or indirectly elected by and re¬ 
sponsible to the States, and the functionaries of the States are in 
their appointment and responsibility wholly independent of the 
United States, no constitutional control of any sort belonged to 
the United States over the States. Under such an organization, it 
is evident that it would be in the power of the States, individually, 
to pass unauthorized laws, and to carry them into complete effect, 
any thing in the Constitution and laws of the United States to the 
contrary notwithstanding. This would be a nullifying power in 
its plenary character; and whether it had its final effect, through 
the legislative, executive, or judiciary organ of the State, would 
be equally fatal to the constituted relation between the two go¬ 
vernments. 

Should the provisions of the Constitution as here reviewed, be 
found not to secure the government and rights of the States against 
usurpations and abuses on the part of the United States, the final 
resort within the purview of the Constitution lies in an amend¬ 
ment of the Constitution, according to a process applicable by the 
States. 


No. 41.] 


75 


And in the event of the failure of every constitutional resort' 
and an accumulation of usurpations and abuses, rendering passive 
obedience and non-resistance a greater evil than resistance and 
revolution, there can remain but one resort, the last of all—an ap¬ 
peal from the cancelled obligations of the compact, to original 
rights and the law of self-preservation. This is the ultima ratio 
under all governments, whether consolidated, confederated, or a 
compound of both; and it cannot be doubted, that a single member 
of the Union, in the extremity supposed, but in that only, would 
have a right, as an extra and ultra-constitutional right, to make the 
appeal. 

This brings us to the expedient lately advanced, which claims 
for a single State a right to appeal against an exercise of power by 
the government of the United States, decided by the State to be un¬ 
constitutional to the parties to the constitutional compact; the de¬ 
cision of the State to have the effect of nullifying the act of the 
government of the United States, unless the decision of the State 
be reversed by three-fourths of the parties. 

The distinguished names and high authorities which appear to 
have asserted and given a practical scope to this doctrine, entitle 
it to a respect which it might be difficult otherwise to feel for it. 

If the doctrine were to be understood as requiring the three- 
fourths of the States to sustain, instead of that proportion to re¬ 
verse the decision of the appealing State, the decision to be with 
out effect during the appeal, it would be sufficient to remark, that 
this extra-constitutional course might well give way to that mark¬ 
ed out by the Constitution, which authorizes two-thirds of the 
States to institute, aud three-fourths to effectuate an amendment of 
the Constitution, establishing a permanent rule of the highest au¬ 
thority, in place of an irregular precedent of construction only. ' 

But it is understood that the nullifying doctrine imports that the 
decision of the State is to be presumed valid, and that it overrules 
the law of the United States, unless overruled by three-fourths of 
the States. 

Can more be necessary to demonstrate the inadmissibility of 
such a doctrine, than that it puts it in the power of the smallest 
fraction over one-fourth of the United States, that is, of seven 
States out of twenty-four, to give the law and even the Constitu- 


76 


[Senate 


tion of seventeen States, each of the seventeen having, as parties 
to the Constitution, an equal right of the seven, to expound it, and 
to insist on the exposition 1 That the seven might, in particular 
instances, be right, and the seventeen wrong, is more than possi¬ 
ble. But to establish a positive and permanent rule, giving such a 
power to such a minority, over such a majority, would overturn 
the first principle of free government, and in practice necessarily 
overturn the government itself. 

It is to be recollected, that the Constitution was proposed to the 
people of the States as a whole^ and unanimously adopted by the 
States as a whole, it being a part of the Constitution that not less 
than three-fourths of the States should be competent to make any 
alteration in what had been unaimously agreed to. So great is the 
caution on this point, that in two cases where peculiar interests 
were at stake, a proportion even of three-fourths is distrusted, and 
unanimity required to make an alteration. 

When the Constitution was adopted as a whole, it is certain that 
there were many parts, which, if separately proposed, would have 
been promptly rejected. It is far from impossible, that every part 
of a Constitution might be rejected by a majority, and yet taken 
together as a whole, be unanimously accepted. Free Constitutions 
will rarely if ever be formed, without reciprocal concessions; 
without articles conditioned on and balancing each other. Is there 
a Constitution of a single State out of the twenty-four that would 
bear the experiment of having its component parts submitted to 
the people and separately decided on 1 

What the fate of the Constitution of the United Stated would be 
if a small proportion of the States could expunge parts of it par¬ 
ticularly valued by a large majority, can have but one answer. 

The difficulty is not removed by limiting the doctrine to cases 
of construction. How many cases of that sort, involving cardinal 
provisions of the Constitution have occurred ] How many now 
exist ? How many may hereafter spring up ? How many might be 
ingeniously created, if entitled to the privilege of a decision in the 
mode proposed] 

Is it certain that the principle of that mode would not reach fur¬ 
ther than is contemplated? If a single State can of right require 
three-fourths of its co-States to overrule its exposition of the Con- 


77 


No. 41. J 

stitution, because that proportion is authorized to amend it, would 
the plea be less plausible that, as the Constitution was unanimous¬ 
ly established, it ought to be unanimously expounded ? 

The reply to all such suggestions seems to be unavoidable and 
irresistible, that the Constitution is a compact, that its text is to be 
expounded according to the provisions for expounding it—making 
a part of the compact; and that none of the parties can rightfully 
renounce the expounding provision more than any other part. 
When such a right accrues, as may accrue, it must grow out of 
abuses of the compact releasing the sufterers from their fealty to it. 

In favor of the nullifying claim for the States, individually, it 
appears, as you observe, that the proceedings of the Legislature 
of Virginia, in ’98, and in ’99, against the Alien and Sedition acts, 
are much dwelt upon. 

It may often happen, as experience proves, that erroneous con¬ 
structions not anticipated, may not be sufficiently guarded against, 
in the language used; and it is due to the distinguished individuals 
who have misconceived the intention of those proceedings, to sup¬ 
pose that the meaning of the Legislature,'though well compre¬ 
hended at the time, may not now be obvious to those unacquainted 
with the contemporary indications and impressions. 

But it is believed that by keeping in view the distinctions be¬ 
tween the governments of the States, and the States in the sense 
in which they are parties to the Constitution; between the rights 
of the parties in their concurrent and in their individual capacities; 
between the several modes and objects of interposition against the 
abuses of power, and especially between interpositions within the 
purview of the Constitution, and interpositions appealing from the 
Constitution to the rights of nature, paramount to all Constitutions, 
with an attention, always of explanatory use, to the views and ar¬ 
guments which were combatted, the resolutions of Virginia, as 
vindicated in the report on them, will be found entitled to an ex¬ 
position, shewing a consistency in their parts, and an inconsistency 
of the whole with the doctrine under consideration. 

That the Legislature could not have intended to sanction such 
a doctrine, is to be inferred from the debates in the house of dele¬ 
gates, and from the address of the two houses to their constituents, 
on the subject of the resolutions. The tenor of the debates, which 


78 


[Senate 


were ably conducted, and are understood to have been revised for 
the press by most, if not all of the speakers, discloses no reference 
whatever, to a constitutional right of an individual State to arrest 
by force the*operation of a law of the United States. Concert 
among the States for redress against the Alien and Sedition laws, 
as acts of usurped power, was a leading sentiment; and the attain¬ 
ment of a concert, the immediate object of the course adopted by 
the Legislature, which was that of inviting the other States “ to 
concur in declaring the acts to be unconstitutional, and to co-ope^ 
rate by the necessary and proper measures, in maintaining unim¬ 
paired the authorities, rights and liberties reserved to the States 
respectively, and to the people.”* That by the necessary and 
proper measures to be concurrently and co-operatively taken, were 
meant measures known to the Constitution, particularly the ordi¬ 
nary control of the people and Legislatures of the States, over the 
government of the United States, cannot be doubted; and the in¬ 
terposition of this control, as the event shewed, was equal to the 
occasion. 

It is worthy of remark, and explanatory of the intentions of the 
Legislature, that the words not law, but utterly null, void and of 
no force or effect,” which had followed, in one of the resolutions, 
the word ‘‘unconstitutional,” were struck out by common consent. 
Though the words were in fact but synonymous with “ unconsti¬ 
tutional,” yet, to gnard against a misunderstanding of this phrase 
as more than declaratory of opinion, the word “ unconstitutional” 
alone was retained, as not liable to that danger. 

The published address of the Legislature to the people, their 
constituents, affords another conclusive evidence of its views. The 
address warns them against the encroaching spirit of the general 
government, argues the unconstitutionality of the Alien and Sedi¬ 
tion acts, points to other instances in which the constitutional li¬ 
mits had been overleaped; dwells upon the dangerous mode of de¬ 
riving power by implication; and in general presses the necessity 
of watching over the consolidating tendency of the federal policy. 
But nothing is said that can be understood to look to means of 
maintaining the rights of the States beyond the regular ones, with¬ 
in the forms of the Constitution. 


Seo the concluding resolution of 1798. 



79 


No. 41.] 

If any further lights on the subject could be needed, a very 
strong one is reflected in the answers to the resolutions, by the 
States which protested against them. The main objection of these, 
beyond a few general complaints of the inflammatory tendency of 
the resolutions, was directed against the assumed authority of a 
State Legislature to declare a law of the United Ststes unconsti- 
^ tutional, which they pronounced an unwarrantable interference with 
the exclusive jurisdiction of the Supreme Court of the United 
States. Had the resolutions been regarded as avowing and main¬ 
taining a right, in an individual State, to arrest, by force, the exe¬ 
cution of a law of the United States, it must be presumed that it 
would have been a conspicuous object of their denunciation. 

With cordial salutations, 

JAMES MADISON. 



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